China’s historic rights improperly in South China Sea ruling

China’s historic rights improperly  in South China Sea ruling

By Hu Zexi, Zhang Mengxu, People’s Daily

China’s historic rights in the South China Sea formed and developed over thousands of years of activities. China’s claims are based on sufficient historic and legal bases and are under the protection of the United Nations Convention on the Law of the Sea (UNCLOS) and other international laws. However, the legitimacy of these rights was denied in the final award given by the arbitral tribunal.

The tribunal concluded that “to the extent China had historic rights to resources in the waters of the South China Sea, such rights were extinguished to the extent they were incompatible with the exclusive economic zones (EEZ) provided for in the Convention.” “There was no legal basis for China to claim historic rights to resources within the sea areas falling within the ‘nine-dash line.’”

China’s historic rights had come into existence long before the conclusion of the Convention. Words like “history”, “historic”, and “historical” repeatedly appear throughout the Convention. When defining a country’s lawful sea rights, international law dictates that historic rightsshould be given prior consideration.

Because of the complexity of states’ historic rights, the authors didn’t develop a universal definition of these rights in the Convention and didn’t intend to replace them with the rules of the Convention either. On the contrary, the Convention gave full respect to the historic rights and decided that they should be regulated by general international law. For example, Article 298 says that a state may declare in writing that it does not accept any compulsory arbitration procedures with respect to disputes concerning sea boundary delimitations or those involving historic bays or titles. The tribunal’s application of articles concerning historic rights clearly exceeded the limits of power permitted by the Convention, which has been criticized by law experts in and outside China.

Hu Dekun, dean of Wuhan University China Institute of Boundary and Ocean Studies, said that China’s sovereignty and maritime rights in the South China Sea formed and evolved over a long course of history. Prior to the signing of the Convention, in 1948 the Chinese government officially published a dashed-line map to clarify its claims to the territorial sovereignty and maritime rights of the Nansha Islands and the surrounding waters.

“Is there anything at all in the Convention saying that a right should be extinguished simply because of its incompatibility with the Convention? Is there any precedent set by the International Court of Justice’s rulings? The tribunal’s decision is clearly a misinterpretation of the Convention and the arbitrators showed their poor knowledge of the history of the South China Sea. ” said Jia Yu, deputy director of Institute for Ocean Development Strategy Studies at China’s State Oceanic Administration.

Jia added that the Convention is a piece of the international law and on its own cannot contain all rules concerning maritime rights. The Convention made clear that what it failed to cover should be regulated by general international law, which is the source of the historic rights.

Lei Xiaolu, fellow at China’s Collaborative Innovation Center for Territorial Sovereignty and Maritime Rights, said that the tribunal made many egregious technical mistakes concerning China’s historic rights in the South China Sea.

First of all, the tribunal overstepped its own jurisdiction to decide on the dashed line matter. The arbitration was initiated by the Philippines to settle the dispute with China in the South China Sea, and should have strictly considered issues related to the dispute. The area falling within the “nine-dash line” goes beyond the scope of the disputed area; nevertheless, the tribunal accepted Manila’s position and issued a decision on this point –clearly a violation of general principles and practice of international arbitration.

Secondly, the tribunal’s perception of China’s historic rights in the dashed-line area is biased. In a diplomatic note delivered to the Foreign Ministry of the Philippines in 2011, the Chinese embassy in Manila protested the country’s bid for exploring oil and gas deposits in areas of the South China Sea where China enjoys historic rights. To serve its pre-determined conclusions, the tribunal dismissed China’s position and ruled that the term “historic rights” used in that note was a “translation error”. The bias here is evident. A ruling made out of mistakes lacks of justice.

Third, the tribunal’s decision over historic rights ignored the general rules of international law based on its misinterpretation of the Convention.
One crucial question facing the tribunal is whether the Convention allows the preservation of rights to resources which are at variance with the Convention and established anterior to its entry into force. To answer this, it is necessary to examine the relationship between the Convention and other possible sources of rights under international law. The tribunal claimed that it has done just this, according to Article 311. The problem is what Article 311 sets out is the Convention’s relationship with other international agreements, rather than with general international law. The tribunal expanded Article 311’s scope of applicability.

The Convention affirms in the preamble that matters not regulated by the Convention continue to be governed by the rules and principles of general international law. The tribunal’s decision is a slap to the Convention’s respect for general international law.

Many foreign experts also recognize China’s historic rights in the South China Sea. Surachai Sirikrai, professor of political science at Thammasat University in Bangkok, said that Chinese people had more than 2,000 years of history in the South China Sea. China was the first to discover, name, develop, conduct economic activities on and exercise jurisdiction over the Nansha Islands. China’s historic rights deserve the recognition of international law. Ken Meyercord, an American TV producer and writer, told People’s Daily that Chinese fishermen have developed a set of rules to name land features in Nansha Islands. Activities like this can be found in many written records.

The Chinese government issued a statement reasserting China’s territorial sovereignty and maritime rights in the South China Sea shortly after the award’s release. “Big as China is, we cannot afford to give away a single inch of territory that our ancestors have left to us,” said State Councilor Yang Jiechi. The decision cannot change the facts, and thus will not affect China’s claims and resolution to safeguard its territorial sovereignty and maritime rights.