A photo taken by satellite

Since the Permanent Court of Arbitration (PCA) constituted under Annex VII to the 1982 United Nations Convention on the Law of the Sea (UNCLOS) (hereinafter called the "Court of Arbitration") was formally established [1] after the Philippines filled the case against Chinauntil the final ruling was released on July 12, 2016, China has repeatedly stated it rejected the PCA’s ruling and the legal effect of the ruling.

This article discusses the arguments of China and pro-China scholars against the PCA’s ruling and points out why these arguments are unfounded in UNCLOS in particular and in international law in general.

Argument 1: Exceptions of historic rights

The Philippines requested the Court of Arbitration to rule on the legal validity of the nine-dotted line and the historic rights of China in the East Sea (internationally known as the South China Sea) [2]. China said that this requirement directly related to its historic rights in the East Sea, in the exceptions outlined in UNCLOS 1982. Therefore, the Court of Arbitration has no jurisdiction to resolve the issues raised in the Philippines’ complaints.

In the ruling on jurisdiction dated October 29th 2015, the Court of Arbitration reserved, did not make a decision about the Court of Arbitration’s jurisdiction for this issue [3]. On Juily 12th 2016, in the final ruling, the Court of Arbitration not only declared its jurisdiction to consider this issue, but also rejected the entire claim on the historic rights of China in the East Sea, confirming the worthless in terms of law of the nine-dashed line [4].

China has repeatedly denied the Court of Arbitration’s ruling. Photo: Pca-cpa.org

According to the Court of Arbitration, the exception provided in Article 298 of UNCLOS aims to exclude the jurisdiction of the Court of Arbitration for disputes relating to "historic bays" or "historic title", and the request of the Philippines does not lie within the scope of this exception.

Firstly, the East Sea is not a gulf, whether geographically or legally [5]. Secondly, from China's behavior in the East Sea (issuing a ban on fishing, oil and gas exploration and claims to respect freedom of navigation and freedom of aviation), the Court of Arbitration concluded that the nature of the nine-dashed line of China in the East Sea is China's historic rights to the mineral resources here [6].

The concept of "historical rights" is not synonymous with "historic title" which is defined in Article 298. Historic title is attached to the sovereignty of a country for certain waters during a long time and must be reflected in the exclusive control of that country.

Besides, the Court of Arbitration also stressed that the historic title of nations must not be opposed by other countries.

Thus, from China's behavior in the East Sea, the Court concluded that China’s claims through the nine-dotted line can be considered as statements about historic rights and cannot be seen as China’s claims of historic title here. So this claim of China is not an exception that is provided in Article 298 of UNCLOS [7].

Related to the issue of legal value of China’s claims of historic rights through the nine-dotted line, the Court of Arbitration found that the historical rights over the exploitation of biological and mineral resources have been identified in the course of construction of UNCLOS.

So, while the concept of "historical rights" exist in the international law of the sea, but when nations became members of UNCLOS, they have abandoned historical rights to waters to accept the rights of coastal nations for the resources in the exclusive economic zone (EEZ) and the continental shelf as established under the provisions of the Convention [8].

At the same time, the Court of Arbitration also analyzed the provisions of UNCLOS on the sovereign rights and jurisdiction right of coastal states in the EEZ and the continental shelf and asserted that these rights are not synonymous with the concept of "historical rights" formed before the Convention came into force [9].

On that basis, the Court of Arbitration affirmed that the UNCLOS only allows the member states to have sovereign rights and jurisdiction over the resources within their EEZ and continental shelf. Therefore, the so-called "historical rights" that China claimed is completely inconsistent with UNCLOS. Since then, the Court of Arbitration asserted that China’s nine-dotted claim in the East Sea has no legal value [10].

Argument 2: China has exception of sovereignty over the features in Truong Sa (Spratly Islands)

Photo taken from a satellite on the current state of the Fiery Cross Reef in the Spratly Islands: The Guardian/VietnamPlus

In the petition submitted to the Court of Arbitration, the Philippines requested the Court to clarify the legal nature of the eight features in the Spratly Islands as islands, reefs or low-tide elevations. According to China, this issue is related to the determination of sovereignty over the features and relevant to the delimitation of the waters in the Spratlys. 

China said that under the provisions of UNCLOS, the Court of Arbitration has no jurisdiction to resolve both issues. However, in the PCA’s ruling on the jurisdiction, the Court of Arbitration confirmed a dispute can include many different legal issues, so if one or several issues are out of the Court's jurisdiction it does not affect its jurisdiction over the remaining issues [11]. This view has repeatedly been confirmed by international courts in the previous legal cases [12].

Since the determination of the legal nature of the features in the Spratly Islands is the interpretation and application of Article 13 and Article 121 of UNCLOS, the Court of Arbitration should is fully competent to solve this problem.

In the ruling dated July 12th 2016, the Court of Arbitration made an extremely important decision on the legal nature of not only the eight features requested by the Philippines. Accordingly, after considering the most reliable evidence in terms of geography, geology and geomorphology, the Court of Arbitration confirmed that no feature in the Spralty Islands has enough elements to be considered "islands" as stipulated in Article 121 of UNCLOS [13].

This conclusion means that no island of the Spratly Islands that allows China to have the exclusive economic zone. Since then, the ruling indirectly eliminates China's territorial claims over the features that the Philippines mentioned in its case.

Pham Ngoc Minh Trang

Faculty of International Relations, University of Social Sciences and Humanities, HCM City

* The article is based on the report presented at the international seminar entitled "Updating the legal issues and policy in the East Sea after the ruling of the Court of Arbitration" co-organized by the Center for International Studies and the Centre for Strategic Studies and National Policies, University of Social Sciences and Humanities, HCM City.

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[1] June 21st 2013
[2] Claims 1 and 2 of the Philippines submitted to the Court of Arbitration Annex VII. The ruling (final), the Philippines vs China case, (Annex VII, UNCLOS), dated July 12th 2016, paragraph 169.
[3] The ruling on jurisdiction, paragraph 398.
[4] The ruling (final), paragraphs 276-278.
[5] The ruling (final), paragraph 205.
[6] The ruling (final) paragraph 214.
[7] The ruling (final), paragraph 229.
[8] The ruling (final), paragraph 239.
[9] The ruling (final), paragraph 246.
[10] The ruling (final), paragraphs 276-278.
[11] The ruling on jurisdiction, paragraph 152
[12] The ruling on jurisdiction, paragraph 152
[13] The ruling (final), nurse, paragraph 626