Non-judiciability of the “historic rights claim” in the South China Sea Arbitration

ZHANG Zuxing1

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

【Abstract】The Award issued on October 29, 2015 by the Arbitral Tribunal which heard the South China Sea arbitration put forward by the Philippines states that the first and second appeals listed in the Plaint filed by the Philippines reflect that there is a dispute over the origin of the sea rights of China South Sea and the function of the UNCLOS between China and the Philippines, and such a dispute is about the interpretation and adaptability of the UNCLOS. As to whether the dispute described in the first and second appeals of the Philippines has the right of jurisdiction or not, it is a decision which has been kept to be made together with substantial issues in the substantial trial stage. The Arbitral Tribunal did not explain why it had the right to handle the substantial issue regarding the nature and legality of China’s historic rights claim and why it made the decision that the dispute concerned in the appeals of the Philippines was within the interpretation and adaptability of the UNCLOS before determining the nature of China’s historic rights claim yet. Obviously, the decisions made by the Arbitral Tribunal were clearly and grossly flawed. It should grasp the standpoints of the two parties involved accurately and judge objectively whether there is a dispute or not; even if it identifies that there is indeed a dispute, it still needs to investigate whether there are adaptable laws and regulations to settle the dispute. Although there is uncertainty over the connotations of concepts like “historic rights” and the “historic title,” the rights formed in history should be respected by the international law undoubtedly. Therefore, the adaptability of certain regulations in the 298th Article of the UNCLOS prevents the Arbitral Tribunal from hearing substantial issues related to historic rights. According to the general international law, the dispute concerning “historic rights claim” belongs to a political dispute which is to be solved by political approaches rather than by laws, and prudent international judicial institutions should avoid exercising rights of jurisdiction on the dispute of this kind.

【Keywords】 South China Sea Arbitration; historic rights claim; non-judiciability; the UNCLOS; South China Sea dispute;

【DOI】

【Funds】 Key Project of the National Social Science Foundation of China “Research on the Juridical Logic and Historical Basis of the Nine-dotted Line of South China Sea” (No. 14ZDB165).

Download this article

(Translated by ZHANG Yan)

    Footnote

    [1]. ① According to Philippines' first claim, “China's maritime rights in the South China Sea, like the Philippines', cannot exceed the scope permitted by UNCLOS.” Its second is “China's sovereign rights, right of jurisdiction and 'historic rights' over the Nine-dotted Line, if beyond the geographical and real limitations of China's maritime rights defined in UNCLOS, are contrary to UNCLOS and ineffective legally.” Cited from “Memorial of the Philippines Government (2014), Arbitration between the Republic of the Philippines and the People's Republic of China,” p. 271, hereinafter referred to as the Plaint. These two claims are classified into one category by the Philippines that China has no right to exercise “historic rights” in the waters, seabed and subsoil beyond the limits defined in the UNCLOS. See the Plaint, p. 2. [^Back]

    [2]. ②“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,” October 29, 2015, the 413th Passage, p. 149. Hereinafter the passage and page of the Award on Jurisdiction and Admissibility are indicated clearly. [^Back]

    [3]. Award on Jurisdiction and Admissibility, the 393th Passage, p. 139. [^Back]

    [4]. Award on Jurisdiction and Admissibility, the 398th Passage, p. 141. [^Back]

    [5]. Award on Jurisdiction and Admissibility, the 398th Passage, p. 141. [^Back]

    [6]. ① U.S. Department of State, China: Maritime Claims in the South China Sea, Limits in the Seas, No. 143, December 5, 2014, p. 1. [^Back]

    [7]. ② U.S. Department of State, China: Maritime Claims in the South China Sea, Limits in the Seas, No. 143, December 5, 2014, p. 23. [^Back]

    [8]. ③ U.S. Department of State, China: Maritime Claims in the South China Sea, Limits in the Seas, No. 143, December 5, 2014, p. 24. [^Back]

    [9]. Award on Jurisdiction and Admissibility, the 160th Passage, pp. 62–63. [^Back]

    [10]. ② “China's Nansha Islands [are] Fully Entitled to Territorial Sea, Exclusive Economic Zone (EEZ) and Continental Shelf,” Award on Jurisdiction and Admissibility, the 160 Passage, p. 63. Additionally, the diplomatic note submitted by China to Secretary General of the United Nations onApril 14, 2011 is correctly cited at the 166th Passage of the Award on Jurisdiction and Admissibility (p. 65), but the link verb “is” in the original note is replaced by “are” in the 169th Passage (p. 66), which is under the clear context that Nansha Islands is regarded as a whole entity by China. [^Back]

    [11]. Award on Jurisdiction and Admissibility, the 163rd Passage, p. 64. [^Back]

    [12]. Award on Jurisdiction and Admissibility, the 167th Passage, p. 65. [^Back]

    [13]. Award on Jurisdiction and Admissibility, the 165th Passage, p. 65. [^Back]

    [14]. ① According to the statement by spokesman of Ministry of Foreign Affairs of the People's Republic of China, “the sovereignty, rights and relevant claims of China in the South China Sea have been formed over a long historical period and have been upheld by the Chinese government.” “Our sovereignty over the South China Sea islands is based on the discovery, preoccupation as well as long-term, sustained and effective management. The UNCLOS does not confer on any state the right to extend its exclusive economic zone and continental shelf claims to the territory of other States, nor does it limit or negate the rights formed over the course of its history and upheld continuously.” See “Ministry of Foreign Affairs’ Spokesman Jiang Yu’s Regular Press Conference on September 15, 2011,” http://news.hexun.com /2011-09-15/133404527.html. [^Back]

    [15]. ② According to the territorial sovereignty-related statement by spokesman of Ministry of Foreign Affairs of the People's Republic of China made on February 7, 2014, the disputes between China and the Philippines over South China Sea are mainly aroused by the Philippines’ illegal occupation of some of the reefs and islets of China's Nansha Islands, and the facts are clear. The two sides also face disputes over maritime delimitation. China has always firmly opposed the Philippines’ occupation of China's reefs and islets. See “Ministry of Foreign Affairs’ Spokesman Hong Lei’s Regular Press Conference on February 7, 2014.” http://www.mfa.gov.cn/mfa_chn/fyrbt_602243/jzhsl_602247/t1126377.shtml [^Back]

    [16]. ③ The Plaint, Passage 7.22., p. 224–225. [^Back]

    [17]. ① The Plaint, Passage 7.20., p. 223. [^Back]

    [18]. ② The Plaint, Passage 7.22., p. 224–225. [^Back]

    [19]. ① The Plaint, Passage 7.23., p. 225. [^Back]

    [20]. ② The Plaint, Passage 7.23., p. 225. [^Back]

    [21]. Award on Jurisdiction and Admissibility, the 168th Passage, p. 66. [^Back]

    [22]. ① “Even if the term ‘historic titles' in the 298th Article (1) (a) does not cover the non-territorial historic rights and accordingly the claims related to historic rights are not within the scope of those ‘disputes involving historical ... ownership,' for the purposes of applying the 15th, 74th or 83rd Articles, in the case where there are disputes or overlapping ocean claims in the marine area, such non-territorial historic rights may still be relevant. Given the absence of a geographical framework or delimitation of the demarcation line between China and the Philippines in the South China Sea, such rights exist unquestionably. Whether the relevant claims can be established—or if so, whether they constitute relevant circumstances, and if relevant, what weight should be assigned to such rights in the delimitation exercise—will be all applicable to the 298th Article (1) (a)‘disputes related to the interpretation or application of the 15th, 74th and 83rd Articles about delimitation of maritime boundary.' Therefore, the disputes concerning these claims are within the scope of the exclusion of China's declaration in 2006. Sienho Yee, “The South China Sea Arbitration (The Philippines v. China): Potential Jurisdictional Obstacles or Objections.” Chinese Journal of International Law, Vol. 13, No. 4, 2014, p. 731. [^Back]

    [23]. ① The Plaint, Passage 7.129, p. 259–260. [^Back]

    [24]. ② The Plaint, Passage 7.133, p. 261. [^Back]

    [25]. ③ “Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), Judgment,” I.C.J. Reports 2008, para. 222, p. 80. [^Back]

    [26]. ④ The Plaint, Passage 7.130, p. 260. [^Back]

    [27]. ⑤ The Plaint, Passage 7.133, p. 261. [^Back]

    [28]. ① “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]

    [29]. ② “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]

    [30]. ③ The Plaint, Passage 7.130, p. 260 [^Back]

    [31]. ④ The Plaint, Passage 7. 133, p. 261 [^Back]

    [32]. ① The Plaint, Passage 7. 136, p. 262 [^Back]

    [33]. The United Nations Convention on the Law of the Sea (联合国海洋法公约).Beijing: China Ocean Press, 27 (2013). [^Back]

    [34]. The United Nations Convention on the Law of the Sea (联合国海洋法公约). Beijing: China Ocean Press, 28 (2013). [^Back]

    [35]. ① Over the past centuries, the marine fishery resources in the Southern Red Sea are traditionally open. The Red Sea enables barrier-free access to the two sides, and additionally, the people on both sides commonly use these islands. All these are influential factors in creating ‘historic rights' which are shared through the process of historical consolidation by both sides as “international easement” that does not yet constitute sovereignty.” “Eritrea v. Yemen, First Stage, Territorial Sovereignty and Scope of the Dispute,” para. 116, 114 ILR 2 (Perm. Ct. Arb. Oct. 9, 1998). [^Back]

    [36]. ② “Arbitral Award on the Subject of the Difference Relative to the Sovereignty over Clipperton Island,” The American Journal of International Law, Vol. 26, No. 2, 1932, p. 393. [^Back]

    [37]. ③ “Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), Judgment,” I.C.J. Reports 2008, para. 37, p. 29. [^Back]

    [38]. ④ Robert Jennings, “The Acquisition of Territory in International Law,” in Collected Writings of Sir Robert Jennings, Vol. 2, Kluwer Law International, 1998, p. 936. [^Back]

    [39]. ① “Frontier Dispute (Burkina Faso/Republic of Mali), Judgment,” I.C.J. Reports 1986, p. 564. [^Back]

    [40]. ② Ian Brownlie, Principles of Public International Law, Sixth Edition, Oxford University Press, 2003, p. 119. [^Back]

    [41]. ③ Ian Brownlie, Principles of Public International Law, Sixth Edition, Oxford University Press, 2003, p. 128. [^Back]

    [42]. ① Charles De Visscher, Theory and Reality in Public International Law, Revised Edition, Translated from French by P.E. Corbett, Princeton University Press, 1968, p. 209. [^Back]

    [43]. ② “Eritrea v. Yemen, First Stage, Territorial Sovereignty and Scope of the Dispute,” para. 106, p. 239, 114 ILR 2 (Perm. Ct. Arb. Oct. 9, 1998). [^Back]

    [44]. ① According to Fenwick’s views on the distinction between the terms “legal dispute” and “judiciable dispute,” “the former is primarily concerned with the nature or character of the issue, while the latter involves an external fact that because of the legal nature of an issue, it is therefore suitable for submission for arbitration or judicial settlement.” See Charles G. Fenwick, “The Distinction Between Legal and Political Questions,” Proceedings of the American Society of International Law, Vol. 18, April 24–26, 1924, p. 45. [^Back]

    [45]. ② J. L. Brierly, “The Judicial Settlement of International Disputes”, Journal of the British Institute of International Affairs, Vol. 4, No. 5, September 1925, pp. 230–231. In the present context, both concepts refer to the fact that the dispute is characterized as submission for legal settlement and thus they are used in the same sense. [^Back]

    [46]. ③ Sir Robert Jennings, “A New Look at the Place of the Adjudication in International Relations Today,” Paper for the Symposium Held to Celebrate the 70 th Birthday of Professor Günther Jaenicke at the Max Plank Institute in Heidelberg in 1984, in Collected Writings of Sir Robert Jennings, Vol. 2, p. 464. [^Back]

    [47]. International Treaty Collections (1872–1916) (国际条约集(1872-1916)).Beijing: World Affairs Press, 338 (1986). [^Back]

    [48]. International Treaty Collections (1945—1947) (国际条约集(1872-1916)). Beijing: World Affairs Press, 43 (1959). [^Back]

    [49]. International Treaty Collections (1945—1947) (国际条约集(1872-1916)). Beijing: World Affairs Press, 44 (1959). [^Back]

    [50]. International Treaty Collections (1945—1947) (国际条约集(1872-1916)). Beijing: World Affairs Press, 67 (1959). [^Back]

    [51]. ② J. Westlake, “International Arbitration,” International Journal of Ethics, Vol. 7, No. 1, October 1896, p. 9. [^Back]

    [52]. ① Charles G. Fenwick, “The Distinction Between Legal and Political Questions,” pp. 44–45. [^Back]

    [53]. ② Charles G. Fenwick, “The Distinction Between Legal and Political Questions,” pp. 46. [^Back]

    [54]. ③ Morgenthau, Politics among Nations: The Struggle for Power and Peace (7th edition) (国家间政治:权力斗争与和平), Thompson, K. & Clinton, D. (eds.), Xu, X., Hao, W. & Li, B. (trans.), Wang, J, (revised).Beijing: Peking University Press, 470 (2006). [^Back]

    [55]. ④ J. L. Brierly, “The Judicial Settlement of International Disputes,” p. 234. [^Back]

    [56]. ① J. Westlake, “International Arbitration,” p. 5. [^Back]

    [57]. ② Sir Robert Jennings, “The International Court of Justice and the Judicial Settlement of Disputes,” in Collected Writings of Sir Robert Jennings, Vol. 2, p. 435. [^Back]

    [58]. ③ Sir Robert Jennings, “International Court and International Politics,” in Collected Writings of Sir Robert Jennings, Vol. 2, p. 480. [^Back]

    [59]. ① Sir Robert Jennings, “The Judicial Function and the Rule of Law in International Relations,” in Collected Writings of Sir Robert Jennings, Vol. 2, p. 488. [^Back]

This Article

ISSN:1003-3386

CN: 11-5370/D

Vol 33, No. 02, Pages 37-59

March 2016

Downloads:0

Share
Article Outline

Knowledge

Abstract

  • 1 Nature of “Historic rightsclaim” and the existence of the dispute
  • 2 No adaptable laws and regulations to define the legality of “historic rights claim”
  • 3 Connotations of “historic rights” stated in the 298th Article of the UNCLOS
  • 4 Non-judiciable dispute
  • 5 Conclusions
  • Footnote