South China Sea Arbitration: a critical review of the rulings by the Tribunal concerning historic rights claim*

ZHANG Zuxing1

(1.School of International Relations, Sun Yat-Sen University, Guangzhou, China 510275)

【Abstract】This article gives a review of the rulings given by the Tribunal constituted under Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS) concerning the Philippines’ submissions No.1 and 2 or so-called historic rights claim in the South China Sea Arbitration case between China and the Philippines. As to jurisdictional issues, the Tribunal has not clearly established the existence of a dispute between the Parties concerning so-called historic rights claim. Furthermore, the Tribunal attempted to apply Article 311 of the UNCLOS to this case but this article is not an applicable rule. Therefore, there exists no dispute concerning the interpretation or application of the UNCLOS between the Parties, and, the threshold requirement for the exercise of jurisdiction is not satisfied. Moreover, China has always claimed historic titles in the South China Sea and this claim has been excluded from the compulsory dispute settlement procedure by Article 298 (1) (a) (i) of the UNCLOS and China’s 2006 Declaration. All in all, the Tribunal should refuse to answer the Philippines’ submissions No. 1 and 2 in this case. In its dealing with the substantive issues, ultra vires, the Tribunal gives a wrong interpretation of the UNCLOS, omitting the relevant provisions such as archipelagic waters and semi-enclosed sea in the UNCLOS. China is entitled to disregard these wrongful rulings.

【Keywords】 South China Sea Arbitration; historic rights claim; jurisdictional issues; substantive issues;

【DOI】

【Funds】 Major Project of the National Social Science Fund (14ZDB165)

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(Translated by HE Jinliao)

    Footnote

    [1]. * This paper only represents the author’s personal opinion. [^Back]

    [2]. [1] “Award on Jurisdiction and Admissibility, in the matter of an arbitration before an arbitral tribunal constituted under Annex VII to the 1982 United Nations Convention on the Law of the Sea between the Republic of the Philippines and the People’s Republic of China”, 29 October 2015, para. 413, p. 149, http://www.pcacases.com/web/view/7 (the materials on the case are from this site, the following is no longer specified). [^Back]

    [3]. [2] “Award, in the matter of the South China Sea arbitration before an arbitral tribunal constituted under Annex VII to the1982 United Nations Convention on the Law of the Sea between the Republic of the Philippines and the People’s Republic of China”, 12 July 2016. [^Back]

    [4]. [3] Memorial of the Philippines (March 30, 2014), Vol. I, p.271. This paper is referred to as “pleadings”. [^Back]

    [5]. [4] Memorial of the Philippines ( March 30,2014 ),Vol. I,p. 2. [^Back]

    [6]. [5] The second-stage Award, para. 276, p. 116. The original: “The Philippines’ Submissions No.1 and 2 are linked and represent two aspects of one dispute concerning the source of maritime rights and entitlements in the South China Sea.” Author’s Note: In this paper, the “rights” and “entitlements” are different. “Entitlement” in Chinese has no definite corresponding word, it has the meaning of “empowerment”, namely, certain types of objects in accordance with the law is given or a kind of marine rights; it also has the meaning of “ownership”, namely, the country can exercise the specific rights of the marine area, such as territorial waters, exclusive economic zones, etc.; and in the context of maritime delimitation, the term can be translated as “right”. [^Back]

    [7]. [6] Stefan Talmon, “The South China Sea Arbitration: Is There a Case to Answer?”, The South China Sea Arbitration: A Chinese Perspective, edited by Stefan Talmon and Bing Bing Jia, Hart Publishing, 2014, p.78. [^Back]

    [8]. [7] Sienho Yee, “The South China Sea Arbitration (The Philippines v. China): Potential Jurisdictional Obstacles or Objections”, 13 Chinese JIL (2014), p. 736. [^Back]

    [9]. [8] Chen Weihua, “China is not getting a fair shake, expert says”, http://www.chinadaily.com.cn/kindle/2016-05/27/content_25495941.htm [^Back]

    [10]. [9] Stefan Talmon, “The South China Sea Arbitration: Observations on the Awardon Jurisdiction and Admissibility”, 15 Chinese JIL (2016), paras. 174–176. [^Back]

    [11]. [10] Stefan Talmon, “The South China Sea Arbitration: Observations on the Awardon Jurisdiction and Admissibility”, 15 Chinese JIL (2016), para.177. For the comprehensive reviews of the shortcomings and errors in the first stage of the arbitral tribunal, see the International Law Society of China, “The Court of the South China Sea Arbitration Tribunal of the Philippines has no legal effect”, June 10, 2016, http://www.csil.cn/News/Detail.aspx?AId=202, August 15, 2016. In addition, many scholars made various criticisms for the different aspects of the ruling. For example: Chris Whomersley, “The South China Sea: The Award of the arbitral tribunal in the Brought by Philippines against China—A Critique Case”, 15 Chinese JIL (2016); Sreenivasa Rao Pemmaraju, “The South China Sea Arbitration (The Philippines v. China): Assessment of the Award on Jurisdiction and Admissibility”, 15 Chinese JIL (2016); Zhang, Z. Diplomatic Review (外交评论), (2), (2016). [^Back]

    [12]. [11] The UN Convention on the Law of the Sea (联合国海洋法公约). China Ocean Press, 257 (2013). [^Back]

    [13]. [12] The Sixth Press Release of the Arbitral Tribunal, (2015-7-13). [^Back]

    [14]. [13] The First-stage Award, para. 148, 57. [^Back]

    [15]. [14]The First-stage Award, para. 131, 45. [^Back]

    [16]. [15] Alan E. Boyle, “Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction”, 46 International and Comparative Law Quarterly (1997), pp. 44–45. [^Back]

    [17]. [16] “The Mavrommatis Palestine Concessions (Greece v. U.K.)”, 30 Aug. 1924, Publications of the PCIJ (1924), Series A–No.2, p.11. [^Back]

    [18]. [17] Robert Jennings, “Reflections on the term ‘dispute’,” in Collected Writings of Sir Robert Jennings, 1998, Vol.2, p. 584. [^Back]

    [19]. [18] Memorial of the Philippines. 221. [^Back]

    [20]. [19] “Chargos Marine Protection Area Arbitration (Mauritius v. United Kingdom), Award (18 Mar. 2015)”, para.87, p. 208. [^Back]

    [21]. [20] The First-stage Award, para.163, 64. [^Back]

    [22]. [21]The First-stage Award, para.158, 62. [^Back]

    [23]. [22] “Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), Judgment”, ICJ Reports 2008, 12 at 75, para 233. [^Back]

    [24]. [23] “Minquiers and Ecrehos Case (France/United Kingdom), Judgment of November 17th”, ICJ Reports 1953, 47 at 65. [^Back]

    [25]. [24] The First-stage Award, para.398, 141. [^Back]

    [26]. [25] The Second-stage Award, para.209, 87. [^Back]

    [27]. [26] The Second-stage Award, para.210, 88. [^Back]

    [28]. [27] The Second-stage Award, para.211, 88. [^Back]

    [29]. [28] The UN Convention on the Law of the Sea (联合国海洋法公约), China Ocean Press, 188 (2013). [^Back]

    [30]. [29] The UN Convention on the Law of the Sea (联合国海洋法公约), China Ocean Press, 182 (2013). [^Back]

    [31]. [30] The Second-stage Award, para.204, 85. [^Back]

    [32]. [31] The Second-stage Award, para.225, 96. [^Back]

    [33]. [32] “Juridical Regime of Historic waters including historic bays-Study prepared by the Secretariat”, p.25, para. 182, 1962, A/CN.4/143, http://www.un.org/law/ilc/index.htm [^Back]

    [34]. [33] “Juridical Regime of Historic waters including historic bays—Study prepared by the Secretariat”, p. 5, para.29, 1962, A/CN.4/143, http://www.un.org/law/ilc/index.htm [^Back]

    [35]. [34] Memorial of the Philippines (March 30,2014 ), para. 7, 130, 260. [^Back]

    [36]. [35] “Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), Judgment”, ICJ Reports 2008, para. 37, p. 29. [^Back]

    [37]. [36] Robert Jennings, “The Acquisition of Territory in International Law”, in Collected Writings of Sir Robert Jennings, Vol. 2, The Hague/London/Boston: Kluwer Law International, 1998, p. 936. [^Back]

    [38]. [37] “Frontier Dispute (Burkina Faso/Republic of Mali), Judgment”, ICJ Reports 1986, p. 564. [^Back]

    [39]. [38] Ian Brownlie, Principles of Public International Law (Sixth Edition), Oxford: Oxford University Press, 2003, p. 119. [^Back]

    [40]. [39] Ian Brownlie, Principles of Public International Law (Sixth Edition), Oxford: Oxford University Press, 2003, p. 128. [^Back]

    [41]. [40] The Second-stage Award, para.277, 116. [^Back]

    [42]. [41]The Second-stage Award, para.277, 116. [^Back]

    [43]. [42] The UN Convention on the Law of the Sea (联合国海洋法公约), China Ocean Press, 28 (2013). [^Back]

    [44]. [43] The Second-stage Award, para.295, 110. [^Back]

    [45]. [44] The Second-stage Award, para.265, 113. [^Back]

    [46]. [45] Clive R. Symmons, Historic Waters in the Law of the Sea: A Modern Re-Appraisal, Martinus Nijhoff Publishers, Leiden/Boston, 2008, p. 286. [^Back]

    [47]. [46] The Second-stage Award, para.575, 237. [^Back]

    [48]. [47] The Second-stage Award, para.576, 237. [^Back]

    [49]. [48] The Second-stage Award, para.576, 237. [^Back]

This Article

ISSN:1008-6099

CN: 44-1124/D

Vol , No. 06, Pages 45-55

November 2016

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Article Outline

Abstract

  • 1 Non-existence of the dispute and the legal rules applicable to the settlement of disputes
  • 2 About the explanation of “historic title”
  • 3 The Convention and the abolishment of historic rights
  • Conclusion
  • Footnote