The issue of the jurisdiction of the Tribunal in the South China Sea Arbitration was a pivotal part of both phases of the case. The Tribunal’s findings on jurisdiction made the consideration of other issues possible, and it was very much a focus of media reporting of the case, owing to China’s non-appearance before the Tribunal. It was also significant, as it provided the first opportunity of an international court to consider some of the jurisdictional elements necessary to be made out for a dispute under Part XV of the United Nations Convention on the Law of the Sea , such as the operation of the military activities exception under Article 298.
One issue critical issue in the context of the jurisdiction of the Tribunal to deal with the dispute was not merely the lack of the participation by China, but also the absence from the proceedings as parties of other claimants to territory in the South China Sea. As is widely known, five States, Brunei, China, Malaysia, the Philippines and Vietnam, as well as the administration on Taiwan, each claim varying territories in the South China Sea, but only the Philippines and China were parties to the dispute before the Tribunal. While territorial claimants Vietnam and Malaysia were observers to the proceedings, neither were participants in the litigation, nor did they make a formal request to intervene. Nevertheless, one of the Tribunal’s key findings, that none of the features in the South China Sea generated anything more than a territorial sea, and therefore none generated an exclusive economic zone (EEZ) , had significant consequences for the jurisdiction of each of the territorial claimants. This chapter will consider the application of the principle espoused by the International Court of Justice in the Case concerning the Monetary Gold removed from Rome in 1943 that an international court will lack jurisdiction where a third party indispensable to the proceedings is not present. It will first consider the nature of the principle itself, before turning to the Tribunal’s treatment of the issue, which interestingly, but not surprisingly, was not pleaded to the Tribunal by the parties to the Arbitration.