Report: Critique of the South China Sea Arbitration Award

Part III: The South China Sea Arbitration Award has serious flaws on such issues as historic rights, outlying archipelagos of continental states, island regime.

I. The Arbitral Tribunal erroneously denies China's historic rights in the South China Sea.

The Arbitral Tribunal argues that UNCLOS is the only basis for establishing maritime rights, superseding any pre-existing historic rights under general international law. The tribunal also interprets China's historical claims in the South China Sea as "historic rights to the living and non-living resources in the waters of the South China Sea within the 'nine-dash line'" which was invalidated as conflicting with the exclusive economic zone and continental shelf regimes under UNCLOS. The Arbitral Tribunal also argues that there is no evidence that China has ever exercised control over the resources of the South China Sea and that China is merely using the exercise of the freedom of the high seas as a justification for denying what it recognized as China claimed historic rights.

This logic of the Arbitral Tribunal is seriously flawed. Although UNCLOS expresses "the desire to settle…...all issues relating to the law of the sea", it does not and cannot exhaust all issues relating to the law of the sea and cannot replace China's historic rights in the South China Sea under general international law. As noted by Professor David Freestone, a renowned academic on international law, the consensus approach adopted in the drafting of UNCLOS and its outcome as a package deal necessarily implied many compromises, and, as the most immediate result, there are still a considerable number of issues that have not yet been fully resolved in UNCLOS. UNCLOS expressly mentions in Paragraph 8 of its Preamble that "matters not regulated by this Convention continue to be governed by the rules and principles of general international law". In fact, UNCLOS recognizes that historic rights are not a matter for UNCLOS to regulate, still less does it contain any provision stating that historic rights are conflict with the regime of exclusive economic zone and continental shelf. On the contrary, UNCLOS deals with the relationship between historic rights and UNCLOS in a manner that respects historic rights in Articles 10, 15, 51 and 298.

Over the years, China has claimed and enjoyed maritime rights in the South China Sea in accordance with international law, including UNCLOS, and has never relinquished any of its long-time established historic rights. China's historic rights can coexist with its exclusive economic zone and continental shelf rights. The Arbitral Tribunal's denial of China's claim to historic rights in the South China Sea on the grounds that UNCLOS has superseded all historic rights that are not in full conformity with the provisions of UNCLOS is an oversimplified and erroneous approach.

II. The Arbitration Tribunal erroneously invalidates the integrity of Nansha Qundao

The Arbitral Tribunal denies China's claim to maritime rights in Nansha Qundao as a whole on the grounds that UNCLOS only provides for the regime of archipelagic States and does not make a specific provision for outlying archipelagos of mainland countries.

This logic of the Arbitral Tribunal is seriously flawed. Claiming maritime rights to the archipelago as a whole is a long-established rule of customary international law. Archipelagos in the general sense can be categorized into three main groups: first, offshore archipelagos of coastal states; second, outlying archipelagos of continental states; and third, archipelagos in the middle of the ocean. The definition of "archipelago" in Article 46 of UNCLOS indicates its concept in the general sense. Upon the entry into force of UNCLOS, the integrity and related rights of offshore archipelagos of coastal states are absorbed by Article 7 (Straight baselines), and those of mid-oceanic archipelagos are absorbed by Part IV (Archipelagic States). The fact that UNCLOS does not provide for the integrity and related rights of outlying archipelagos of continental states does not mean, in the light of the history of international treaties, that UNCLOS negates the regime of outlying archipelagos of continental states, but rather that it continues to be regulated by the rules of customary international law, as a matter pending in UNCLOS.

As a matter of fact, at present, approximately 20 continental states worldwide possess outlying archipelagos, with 17 of them having established straight baselines for their outlying archipelago as a whole. The relevant practice, which has run before and after UNCLOS, reflects a high degree of universality and consistency. It has been tacitly recognized and accepted by most other members of the international community, and accumulated sufficient state practice and opinio juris. It should be noted in particular that these are all mainland countries with outlying islands whose interests are "specially affected", and whose practice is broad and representative and most relevant to the identification of customary international law. The relevant practice is sufficient to prove that customary international law in respect of outlying islands of mainland countries has long been established and is continuing and developing.

Nansha Qundao constitutes a geographic, economic and political entity that meets the definition of "archipelago" under UNCLOS. Historically, the Chinese people and successive Chinese Governments have also regarded Nansha Qundao as a whole, which has been recognized by the international community, particularly by neighboring countries. For example, Article 2 of the 1951 San Francisco Peace Treaty stipulates that "Japan renounces all rights, title and claim to the Spratly Islands and to the Paracel Islands", clearly recognizing Nansha Qundao and Xisha Qundao as a whole as the basis for claiming maritime rights. In 1958, China made the Declaration on the Territorial Sea in accordance with international law, stipulating that the method of delimiting the territorial sea with straight lines and baselines applied to all territories of China, including Nansha Qundao. The then Prime Minister of the Government of Vietnam, Pham Van Dong, sent a note to the Premier of the State Council of the People's Republic of China, Zhou Enlai, solemnly stating that the Government of Vietnam recognizes and endorses the Chinese Government's Declaration on the Territorial Sea and respects this decision. The 1992 Law on the Territorial Sea and the Contiguous Zone further confirms the claim to maritime rights based on Nansha Qundao as a whole.

Therefore, Nansha Qundao of China, as an outlying archipelago of a mainland country, is a self-contained national territory recognized by international law. The legal status of the archipelago as a whole and its maritime rights built upon this basis are well-established customary international law. Having existed prior to the entry into force of UNCLOS, they are a matter pending under UNCLOS after it entered into force. Rather than contradicting UNCLOS, they remain subject to the regulation of customary international law. It is not justified under the law for the Arbitral Tribunal to deny China's rights to Nansha Qundao as a whole and to its maritime rights by advocating that UNCLOS is supreme and unique or should come first.

III. The Arbitral Tribunal erroneously decides the status of some features in Nansha Qundao.

According to Article 121 of UNCLOS (Regime of Islands), an island is a naturally formed area of land, surrounded by water, which is above water at high tide. The territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined as applicable to other land territories. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.

In interpreting this provision, the Arbitral Tribunal added several qualifications for the determination of islands, such as new natural and self- criteria for "cannot sustain", new criteria of settlement and human community for "human habitation", and new criteria of self-sufficiency for "economic life of their own". In essence, it has rewritten the provision into "only islands in a natural state which can sustain human community habitation and economic life of their own shall have exclusive economic zones and continental shelves", thus substantially raising the threshold for the identification of islands. This self-imposed law-making function of the Arbitral Tribunal is contrary to the original intent of UNCLOS and deviates from the relevant practice.

Based on this mistake, the Arbitral Tribunal completely ignored the fact that many islands in China's Nansha Qundao and Zhongsha Qundao feature dense vegetation, a wide range of fruits, vegetables and livestock, remarkable agricultural potential, a long history of fishermen, and frequent commercial activities. It makes a ruling that all the "high-tide features" are "rocks". Even Taiping Dao is no exception.

The Arbitral Tribunal has misinterpreted and misapplied UNCLOS in its determination of the islands, and come to a clearly absurd conclusion that has been extensively questioned and criticized by the academia of international law.