Misattribution of China’s Historic Rights to the South China Sea by the 2016 South China Sea Arbitration (Part I)

FU Kuen-chen

Abstract:On 12 July 2016,the arbitral tribunal in the South China Sea(hereinafter referred to as“SCS”) arbitration initiated by the Philippines announced an award.The Tribunal was established and funded at the Philippines’ unilateral request and the award rendered by it was absurd.First,the Tribunal distorted China’s claims for the historic rights to the SCS by 1) misinterpreting the timing and seriousness of China’s claims for historic rights in SCS;2) misinterpreting the transliteration of the foreign names of some reefs in the SCS;3) distorting the historic fact that China has always respected the right to freedom of navigation;4)misconstruing the actions that the Chinese government has implemented to protect the rights of its citizens,which encompass:fishing bans in the SCS,intervention in the Philippines’ activities of natural gas extraction;5) misinterpreting the legitimate affairs such as the designation of oil areas in U-shaped line in the SCS,which was conducted by the China National Offshore Oil Corporation.Second,the Tribunal misinterpreted the sources that ground China’s claims to the historic right to the SCS.When releasing the aforesaid award,the Tribunal was oblivious to the specific geographical and historical conditions of the SCS.It also neglected to consider relevant historical data which substantiate China’s practice of historic right to the SCS.Besides,the Tribunal distorted the Hai-jin (Sea-Forbiddance) that was carried out by China in the Ming Dynasty alongside the history of post-World War II order reconstruction.Lastly,the Award issued demonstrates the Tribunal’s overall curtness and malignity of China’s assertion to its historic right to the SCS.The Tribunal has severely breached the legal obligations of United Nation Convention on the Law of the S ea (UNCLOS).Its award was not properly substantiated with evidence and was with sinister intention of concealment of facts.It has attempted to mislead readers through the reservation clause of UNCLOS,and has repeatedly and deliberately demonized specific evidences presented by China.The Tribunal is fully aware of the liberal elasticity of historic right;nevertheless,it cited Article 56 for twelve times while maliciously neglecting Article 56 (2).The ruling is full of absurd“mosquito logic”and seriously undermines the international rule of law.

Key Words:Historic rights;Free navigation;Hai-jin (Sea-Forbiddance);Post-World War II international order;UNCLOS

[Editor’s note]:

As this article is too long,we divided it into two parts. This issue presents the first part of the article while the second part will be presented in the next issue.For the perusal of our readers,the article’s contents are listed below:

I.The Tribunal’s Misinterpretations of China’s Claims for the Historic Rights and to the SCS

A.Misinterpretation of the Timing and Seriousness of China’s Claims for the Historic Rights

B.Misinterpretation of China’s Transliteration of the Names of Some Islands and Reefs in the SCS

1.Connection Between Chinese Names of the SCS Islands and Chinese History

2.Diversification of the Names of the SCS Islands in Chinese and Inconsistency with the Translated Names in Foreign Languages

3.Unified Management of Naming the SCS Islands by the Chinese Government

C.Misinterpretation of China’s Respect for Free Navigation

D.Misinterpretation of China’s Fishing Ban,China’s Objections to the Philippines’ Oil and Gas Exploration as well as the Demarcation of Blocks for Petroleum Exploration by CNOOC Within the U-shaped Line

II.The Tribunal’s Misinterpretations of the Source of China’s Historic Rights and to the SCS

A.Neglecting the Special Geographic and Historical Conditions in the SCS

B.Ignoring the Historical Materials Concerning China’s Practice of the Historic Rights to the SCS

1.China First Discovered and Utilized the Reefs and Waters in the SCS

2.China’s Exercising Sovereignty via Various Activities in the SCS

3.China’s Sovereign Control over the Reefs and Waters in the SCS in the 20th Century

C.Misinterpretation of China’s Hai-Jin (Sea-Forbiddance)

D.Distortion on the History of Post-war Order Reconstruction

III.The Hasty Argument on China’s Historic Rights in the SCS

A.The Tribunal Seriously Violates the Legal Obligation of the Convention,Claiming China’s Statement in responde to the award on“Jurisdiction and Admissibility”rendered by the Tribunal as the“Most Insightful Formulation”of China’s Claims to the SCS

B.The Tribunal Admits Its Award Lacking Evidence,Conceals Facts,and Determines China’s Rights in the South China Sea Being Fishing Rights Only

C.The Tribunal Attempts to Mislead the Reader through the Article of Reservation in the Convention,Erroneously Determining that China’s Claims Supersede the Convention Widely

D.The Tribunal Repeatedly and Deliberately Demonizes China

E.The Tribunal Recognizes the Inclusive Flexibility of Historic Rights,but Unreasonably Determines that China’s Rights Supersede the Convention and Deliberately Waives Favorable Evidence on the Pretext of No Jurisdiction,Evading Article 56 (2) of the Convention When Referring to the Same Article 12 Times in Its Award

IV.The Tribunal’s Absurd“Mosquito Logic”and Its Serious Damage to the International Rule of Law

The Tribunal in the arbitration unilaterally instituted by the Philippines issued its so-called final award on the South China Sea (hereinafter referred to as“SCS”)case on 12 July 2016.With deliberate ignorance and malicious distortion,the award consistently misinterprets China’s position,actions and the historical evidence that China has provided to support its claims to historic waters in the SCS.

Despite the fact that the Tribunal has no right of jurisdiction over the case,to deny the legal status of U-shaped line and historic rights of China in the SCS,it even evaded the special nature of history and geography in the SCS in its ruling and distorted the legal significance of China’s relevant actions,acting as if it had the authority of interpreting the United Nations Convention on the Law of the Sea (UNCLOS,hereinafter referred to as“the Convention”).Firstly,the Tribunal mistakenly deployed China’s history of navigation and fishing1South China Sea Arbitration,Award of 12 July 2016,para.235.to interpret China’s historic rights to the waters in the SCS as these were exclusively applicable to the waters’ biotic and abiotic resources.2South China Sea Arbitration,Award of 12 July 2016,para.270.Subsequently,at risk of abusing its power of ruling,the Tribunal,which went beyond the scope of the Philippines’ claims in this case,completely negated China’s sovereignty,sovereign rights and jurisdiction over the SCS.The Tribunal also departured from the basic nature of positive law,mistaking the UNCLOS as an all-embracing,constant,thorough and complete rule.The award thus represents a significant aberration to the international rule of law and,to demonstrate so,this article respectively rebuts the aforementioned flaws in the verdict.

I.The Tribunal’s Misinterpretations of China’s Claims for the Historic Rights and to the SCS

A.Misinterpretation of the Timing and Seriousness of China’s Claims for the Historic Rights

The Tribunal deliberately distorted the longstanding history and the seriousness of China’s claims for historical rights over the waters of SCS.As the Tribunal stated,it acted as such as it was convinced that,“since the adoption of the Convention,historic rights were mentioned in China’s Exclusive Economic Zone and Continental Shelf Act,but without anything that would enable another State to know the nature or extent of the rights claimed.The extent of the rights asserted within the ‘nine-dash line’ only became clear with China’s Notes Verbales of 7 May 2009”.3South China Sea Arbitration,Award of 12 July 2016,para.275.

As matter of fact,China’s sovereignty over the SCS Islands as well as its relevant rights and interests in the SCS had long been established through history via solid historical and legal basis.The U-shaped line in the Geographical Location Map of the South China Sea Islands,which was mapped during 1945-1946 and published in 1947,announced that in history China had demonstrated in various forms its territorial sovereignty as well as maritime rights and interests over the SCS.What the Tribunal deliberately avoided mentioning was that each section of the U-shaped line in the SCS was drawn as a national boundary line,which is,in turn,consistent with the format of the general undetermined boundary line on the land.The legislative intention,as well as the interpretation that legislators had of the“historic rights”embedded in the 1998 Law on the Exclusive Economic Zone and the Continental Shelf of the People’s Republic of China,can also be found in research interviews and relevant literature written in Chinese.

It is thus impossible to understand how the Tribunal,despite the lack of adequate investigation and research,unilaterally accepted the Philippines’ claim and attributed it to China’s actions that“there is nothing enable other States to know”the nature or content of China’s historic rights In the relevant note that China submitted to the United Nations in 2009,China once again attached a map of the U-shaped line in the SCS as an evidence to express its opposition to the unilateral claims that some of its neighboring countries had made over the continental shelf.By doing so,China safeguarded its territorial sovereignty and maritime rights in the SCS under the UNCLOS.It is completely wrong for the Tribunal to understand the note as China’s first proposal of historic rights to the SCS.

B.Misinterpretation of China’s Transliteration of the Names of Some Islands and Reefs in the SCS

To support the argument that there are no“documents evidencing any official Chinese activities in regard to any South China Sea feature”,4South China Sea Arbitration,Award of 12 July 2016,para.197.the Philippines selectively cited circumstantial evidence in the attempt to disguise China’s activities historically in the SCS.According to what the Philippines falsely stated following the defeat of the Japanese forces in World War II,when China“sought to assert its claim over the South China Sea islands”,its government developed Chinese names for some of their features whereas the majority of them were,back then,only identified by the Chinese transliteration of their English names.”Consequently,as the Philippines stated,“Lord Auckland Shoal was thus named‘Ao ke lan sha’,Mischief Reef ‘Mi-qi fu’,and Gaven Reef ‘Ge wen’”.5South China Sea Arbitration,Award of 12 July 2016,para.197.Merits Hearing Tr.(Day 1),p.96.These three specific instances were congruently deployed by the Philippines to question the existing of proper Chinese names for all the remaining islands and reefs in the SCS and to challenge China’s naming history of islands and reefs in the trial.On the basis of such a contrived evidence,the Philippines questioned China’s historic rights in the area by simply stating that the latter country“had so little involvement or connection that most of the features had no Chinese names.”6South China Sea Arbitration,Award of 12 July 2016,para.197.Merits Hearing Tr.(Day 1),p.96.

During the trial,the Philippines made incorrect statements on the objective situation of the SCS Islands while moreover ignoring a series of historical facts which proves China’s continued presence in the SCS.Its actions with winning mindset as disputing party can still be understood.However,these false statements were cited by the Tribunal in its final award.The Tribunal ruled in favor of the Philippines and,accordingly,ignored and misinterpreted China’s historical facts,and attempted to cut off the historical ties existing between China and the Nansha Islands as well as other islands and reefs in the SCS.

1.Connection Between Chinese Names of the SCS Islands and Chinese History

The activities of the Chinese people in the SCS date back to over 2,000 years ago.China is the first to have discovered,named,explored and exploited the SCS Islands and relevant waters,and the first to have continuously,peacefully and effectively exercised sovereignty and jurisdiction over them.7Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines,Ministry of Foreign Affairs of the People’s Republic of China,para.2.China’s sovereignty over the SCS Islands and relevant rights and interests in the SCS have been established in the long course of history,and are solidly grounded in history and law.8China Adheres to the Position of Settling Through Negotiation the Relevant Disputes Between China and the Philippines in the South China Sea,The State Council Information Office of the People’s Republic of China,July 2016,para.3.

According to the existing historical data,China named the Xisha and Nansha Islands respectively more than a thousand years ago.During the Song Dinasty,the Xisha Islands were in fact named as“Jiuruluo Zhou”and the Nansha Islands as“Shi Tang”.9HAN Zhenhua ed.,Compilation of Historical Accounts on South China Sea Islands,Beijing:Oriental Publishing House,1998,p.3.(in Chinese)The locations and distributions of the Xisha and Nansha Islands,as well as the navigation and production activities that the Chinese people conducted in these waters over thousands of years,were recorded in literary works such as theMeng Liang Luof the Song Dynasty,theDaoyi Zhilveof the Yuan Dynasty,theDongxiyang Kaoand theShunfeng Xiangsongof the Ming Dynasty,theZhinan ZhengfaandHaiguo Jianwenluof the Qing Dynasty and,lastly,theGeng Lu Buthat has been used among fishermen for generations.These literatures recorded the distribution of the islands and reefs as well as the navigation and production activities of the Chinese people in the two islands for thousands of years.The Xisha and Nansha Islands are indicated respectively as“Jiuruluo Zhou”,“Shi Tang”,“Qianli Shitang”,“Wanli Shitang”,“Changsha”,“Qianli Changsha”,and“Wanli Changsha”alongside attributing names to a vast amount of reefs,sandbanks and beaches existing in the two islands.10China’s Indisputable Sovereignty over the Xisha and Nansha Islands,Ministry of Foreign Affairs of the People’s Republic of China,30 January 1980,p.20.

In the historical process of exploring and utilizing the SCS,Chinese fishermen have formed a relatively fixed naming system for these islands.Islands and sandbanks are referred to as“Zhi”;reefs are called as“Chan”,“Xian”and“Sha”;atolls are indicated as“Kuang”,“Quan”and“Tang”;and shoals are named as“Shapai”and so on.11China Adheres to the Position of Settling Through Negotiation the Relevant Disputes Between China and the Philippines in the South China Sea,The State Council Information Office of the People’s Republic of China,July 2016,para.3.During the Ming and Qing Dynasties,Geng Lu Buwas a map which was developed as a guide for Chinese fishermen to navigate between the coastal areas of mainland China and the SCS Islands.Written and circulated in various versions,Geng Lu Bualso recorded the lives of the Chinese people,their production and development activities in the SCS Islands as well as the names which they had given to the SCS Islands.It includes at least 70 names for the islands,reefs,sandbanks and beaches of the Nansha Islands.Some of these were named after the directions of the compass directions such as in the case of Subi(today’s Zhubi Reef) and Dongtou Yixin (today’s Bombay Shoal).Some others were named after local products such as in the case of Chigua Xian (today’s Chigua Reef),and Mogua Xian (today’s Nanping Reef).Some more were named after their shape,features of objects or water courses such as in the case of Niaochuan(today’s Xian’e Reef),Shuangdan (today’s Xinyi Reef),Guogai Zhi (today’s Anbo Cay),Chenggou Zhi (today’s Jinghong Island),and Liumen Sha (today’s Liumen reef).12China Adheres to the Position of Settling Through Negotiation the Relevant Disputes Between China and the Philippines in the South China Sea,The State Council Information Office of the People’s Republic of China,July 2016,para.11.

In the version of theGeng Lu Buby Hainan fishermen,the specific names given to some islands and reefs in the Xisha and Nansha Islands are still in use.For example,the Yongxing Island of the Xisha Islands is still called“Ba Zhi”,Shanhu Island is still called“Laocu Zhi”,Ganquan Island is still called“Yuan Zhi”and,lastly,Zhongjian Island is called“Banlu Zhi”.13HAN Zhenhua ed.,Compilation of Historical Accounts on South China Sea Islands,Beijing:Oriental Publishing House,1998,p.2.(in Chinese)The meanings embedded in these geographical names represent a vivid reflection of the natural character of these islands and the beautiful wishes of the fishermen.

2.Diversification of the Names of the SCS Islands in Chinese and Inconsistency with the Translated Names in Foreign Languages

The naming of the SCS Islands by the Chinese people continues to change with the long historical process of discovering and developing the islands and reefs in the SCS over the past two thousand years.During the Song and Yuan Dynasties,China named the islands as“Qianli Changsha (one-thousand-li sand cays)”and“Wanli Shitang (ten-thousand-li rocky reefs)”.14A Memorandum of Understanding about the Xisha and Nansha Islands,Ministry of Foreign Affairs of the People’s Republic of China,May 1988.In the Ming dynasty,with the increase of the records of the SCS Islands,there are significant changes in the name of the islands.The names of“Shitang (rocky reefs)”and“Changsha (long sand cays)”were used with reference to a variety of places.As more knowledge concerning the islands was accrued,records registering their characteristics increased proportionally,and the names of islands varied.15Kuen-chen FU,A Study on the Legal Status of the South (China) Sea,Taipei:123 Information Co.,1995,pp.52～54.(in Chinese)Names of the islands and reefsrecorded inGeng Lu Bufrom different places in different versions are also diverse.

As mentioned above,the Tribunal misinterpreted the use of English names by China to refer to some of the islands and reefs in the SCS,maintaining to deny China’s assertion of the historic rights to the SCS.In fact,the names of the SCS Islands have always been translated from Chinese to foreign languages and vice versa.When people from other countries trespassed the Nansha Islands in the 19th century,Chinese people had already lived on the islands and reefs.Foreigners arriving there learned the names of some islands and reefs as these were pronounced in the Hainan dialect used by the fishermen there living but marked them on maps in English or other languages.Later,the names of those place were translated once more in China from foreign languages to Chinese.Since not all Chinese could understand the Hainan dialect or did not know about the origins of the islands’ names,they often mistakenly assumed that these islands and reefs had been named by foreigners.For example,“Sin Cowe”and“Namyit”recorded in the China Sea Directory,which was published by the British Navy in 1898,are virtually transliteration of“Chenggou (Jinghong Island)”and“Nanyi (Hongxiu Island)”called by Chinese fishermen in Hainan dialect.16Kuen-chen FU,A Study on the Legal Status of the South (China) Sea,Taipei:123 Information Co.,1995,p.56.(in Chinese)

The Tribunal ignored the ancient names of the SCS Islands named by Chinese people and adopted later by Western navigators.Some of the original Chinese names of the SCS Islands had been likewise cited by Western navigators as well as recorded in some of their most authoritative navigation guides and maps of the 19th and 20th centuries.17China Adheres to the Position of Settling Through Negotiation the Relevant Disputes Between China and the Philippines in the South China Sea,The State Council Information Office of the People’s Republic of China,July 2016,para.12.Some of these ancient names were transliterated,some others were paraphrased,and some more others constituted a combination of transliteration and liberal translation.18HAN Zhenhua ed.,Compilation of Historical Accounts on South China Sea Islands,Beijing:Oriental Publishing House,1998,p.3.(in Chinese)In the 16th century,the Portuguese called Yongxing Island“Paxo”,which was apparently a transliteration of“Bazhi”called by fishermen in Hainan dialect.19HAN Zhenhua ed.,Compilation of Historical Accounts on South China Sea Islands,Beijing:Oriental Publishing House,1998,p.3.(in Chinese)The ancient Chinese name“Wanli Shitang”for the Xisha Islands was similarly adopted by the Japanese historian Iwao Seiichi in his bookStudies of the Red Seal Ship Trade.20HAN Zhenhua ed.,Compilation of Historical Accounts on South China Sea Islands,Beijing:Oriental Publishing House,1998,p.3.(in Chinese)

3.Unified Management of Naming the SCS Islands by the Chinese Government

Starting from the 20th century,the Chinese government has made three integrated changes to the name of the SCS Islands.From 1934 to 1935,in order to clarify the extact territories and denominations of the Chinese Dongsha,Xisha,Zhongsha and Nansha Islands,21China’s Indisputable Sovereignty over the Xisha and Nansha Islands,Ministry of Foreign Affairs of the People’s Republic of China,30 January 1980,p.22.the Land and Water Maps Inspection Committee which encompassed representatives from the Ministry of Internal Affairs,the Foreign Ministry,the Marine Ministry and a few other departments of China at that time,examined and approved the names of the islands in the SCS.In April 1935,the Land and Water Maps Inspection Committee published the Map of Chinese Islands in the South China Sea,which marked the names and locations of the islands,reefs,sandbanks and beaches of SCS in details.22HAN Zhenhua ed.,Compilation of Historical Accounts on South China Sea Islands,Beijing:Oriental Publishing House,1998,p.11.(in Chinese)During World War II,in 1939,Japan invaded the Xisha and Nansha Islands.After Japan surrounded in 1945,the Chinese government assigned senior officials to the Xisha and Nansha Islands by warship in November and December 1946.There,they held reception ceremonies,erected monuments as well as dispatched troops to several outposts.In 1947,the Chinese government renamed the Dongsha,Xisha,Zhongsha and Nansha Islands alongside the islands,reefs,sandbanks and beaches in the same area.23A document titled“China’s Indisputable Sovereignty over the Xisha and Nansha Islands”,Ministry of Foreign Affairs of the People’s Republic of China,30 January 1980；Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines,Ministry of Foreign Affairs of the People’s Republic of China,para.2.In order to standardize the place names nationwide,meet the needs of socialist modernization and develop the maritime industry,the Chinese government conducted a census of the SCS Islands and has conducted standardization in accordance with the Provisional Regulations of The State Council on the Naming and Renaming of Places.24HAN Zhenhua ed.,Compilation of Historical Accounts on South China Sea Islands,Beijing:Oriental Publishing House,1998,p.14.(in Chinese)In April 1983,the Committee on Geographical Names of China published the names of the islands,reefs,sandbank and beaches of the SCS Islands alongside their Romanized pinyin version.25China’s Indisputable Sovereignty over the Xisha and Nansha Islands,Ministry of Foreign Affairs of the People’s Republic of China,30 January 1980,p.22.

The fact that the Chinese government has revised the names of the SCS Islands multiple times stands as a testimony of the country’ investment in improving their administration alongside its will to strengthen effective jurisdiction over them.When advancing their claims,the Philippines added evidences in its favor and carefully concealed the fact,completely ignored the fact demonstrating by a complete chain of evidences that China was the first country to discover,denominate,develop and utilize the SCS Islands in a long term and to exercise the jurisdiction over them sustainably,peacefully and effectively.As a result,false statements such as“the southernmost boundary of China’s territory shall not exceed the Hainan Island”,and“China had never exercised jurisdiction over the South China Sea Islands”are,to say the least,misguided.Congruently,the Tribunal’s acceptance of the Philippines’ stance on the matter by blindly following the Philippines’ viewpoint and distorting the objective facts amounts to an willing misinterpretation of China’s use of English names for some islands and reefs of the SCS.

C.Misinterpretation of China’s Respect for Free Navigation

As the Chinese government announced on 7 December 2016,“China respects and upholds the freedom of navigation and overflight enjoyed by all states under international law in the South China Sea,and stays ready to work with other coastal States and the international community to ensure the safety of and the unimpeded access to the international shipping lanes in the South China Sea.”26Statement of the Government of the People’s Republic of China on China’s Territorial Sovereignty and Maritime Rights and Interests in the South China Sea,July 2016.Even before this pronouncement,the Chinese government had publicly expressed many times China respects and safeguards the freedom of navigation and overflight in the SCS.

In this regard,in its award,the Tribunal correctly cited:

At the same time,China has unequivocally stated that it respects freedom of navigation and overflight in the South China Sea.On 27 October 2015,China’s Vice Foreign Minister stated that ‘[t]he Chinese side respects and safeguards the freedom of navigation and overflight in the South China Sea to which all countries are entitled under international law ... There has been and will be no obstruction to navigation and overflight freedom in the South China Sea.’ The same commitment has been repeated in numerous other statements by Chinese officials and spokespersons.27South China Sea Arbitration,Award of 12 July 2016,para.212.

However,instead of receiving this statement as a confirmation of China’s commitment to uphold the international law,the Tribunal interpreted it as an evidence substantiating the denial of China’s historic rights to the SCS.As an ancient maritime trade State,China has always supported the right to freedom of navigation as well as strongly supported the Convention from the outset.Objectively,China’s historical practice of allowing free navigation in its sea constitutes also the basis for the development of the“freedom of navigation on the high seas”.28Art.87 of the Convention (Freedom of the high seas).According to the current Convention,there is freedom of navigation on the high seas,but the Convention has never stipulated that waters with free navigation (such as the exclusive economic zone) are the high seas.The Tribunal erroneously approached China’s traditional position of allowing free navigation in the SCS as a sufficient rationale to consider the SCS as“high seas”.Consequently,it used this rationale as a means to deny China’s claims to sovereignty in the SCS and only recognize the country’s rights to exploit fishery resources.This approach represents a serious distortion of China’s international stance thus also constitutes a serious breach to the international law.

In the 1958 Convention on the High Seas (CHS),the definition of the“high seas”is rather clear.However,in the Convention which entered into force in 1994,the definition of the“high seas”has become more ambiguous.Article 87 of the Convention provides that the high seas are open to all States.And they enjoy“freedom of navigation”at the“high seas”.29Art.87 of the Convention provides (Freedom of the high seas):1.The high seas are open to all States,whether coastal or land-locked.Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law.It comprises,inter alia,both for coastal and land-locked States:(a) freedom of navigation;(b) freedom of overflight;(c) freedom to lay submarine cables and pipelines,subject to Part VI;(d) freedom to construct artificial islands and other installations permitted under international law,subject to Part VI;(e) freedom of fishing,subject to the conditions laid down in section 2;(f) freedom of scientific research,subject to Part VI and XIII.2.These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas,and also with due regard for the rights under this Convention with respect to the activities in the Area.But what is“high seas”? Even the Convention does not directly define it,and only stipulates in Article 86:“The provisions of this Part [of High Seas]apply to all parts of the sea that are not included in the exclusive economic zone,in the territorial sea or in the internal waters of a State,or in the archipelagic waters of an archipelagic State.This article does not entail any abridgement of the freedoms enjoyed by all States in the exclusive economic zone in accordance with Article 58.”In other words,to count as high seas,waters must extend beyond the exclusive economic zone,albeit a certain degree of freedom in the traditional exclusive economic zone is allowed.This amounts to say that,if freedom of navigation is allowed in certain sea parts,those waters cannot be considered as the high seas by default.They might be an exclusive economic zone or something else.

For thousands of years,far before the outset of the Convention,China has always allowed ships from all countries to enjoy the right to free navigation in the“eastern and northern waters of the South China Sea”under its management.In some cases,this practice allows to identify these waters as“high seas”in the sense of the international law of the sea as much as to consider them as Chinese“historic waters”,which include today’s territorial sea,high seas,exclusive economic zone waters,and even“superjacent waters above the continental shelf”.Even in the 21st century,if a certain State,especially mid-ocean archipelagic States without any naval power,has acquiesced in the free navigation (note:not freedom of navigation) of foreign ships in its territorial sea,exclusive economic zone or archipelagic waters,it cannot be interpreted as an evidence that the State in question consider its territorial sea,exclusive economic zone or archipelagic waters as the high seas.Nor can it be the case even when a given State has allowed foreign ships to enjoy,in their territorial waters or archipelagic waters,five other freedoms of the high seas,ie.,freedom of navigation,freedom of overflight,freedom to lay submarine cables and pipelines,freedom to construct artificial islands and other installations permitted under international law,freedom of fishing and freedom of scientific research.30Art.87 of the Convention (Freedom of the high seas).

In this regard,as an ancient civilized coastal State,China’s respect of the“traditional freedom of navigation”of other States in the SCS should not be interpreted as an implicit recognition that China considers its“historic sea area”as the“high seas”.Likewise,it should not be believed that China no longer possesses historical jurisdiction or vested interest in the SCS as accumulated through thousands of years of practice.

The fact that an ancient civilized coastal State continues to respect the traditional free navigation or any other maritime right of other States in its historic waters after the entry into force of the Convention in 1994 is international comity.From this perspective,the Tribunal plainly distorted China’s diplomacy as a means to deny that China’s historic claims in the SCS stem from long-term navigation and fishing and,moreover,incorrectly implement the Philippines’ stance that China’s southern waters are“just”the high seas.As the Tribunal mentioned in its award:

The Philippines notes China’s support of the three-mile territorial sea limit during the Second UN Conference on the Law of the Sea in 1960,as well as the fact that China’s Declaration of the Government of the People’s Republic of China on China’s Territorial Sea refers to the Spratly Islands as being‘separated from the mainland and its coastal islands by the high seas’,and not by any maritime area in which China had particular entitlements.31South China Sea Arbitration,Award of 12 July 2016,para.199.

Also,it accepted the Philippines’ wishful thinking by abruptly declaring that:

Historical navigation and fishing,beyond the territorial sea,cannot,therefore,form the basis for the emergence of a historic right.… Evidence that merely points to even very intensive Chinese navigation and fishing in the South China Sea would be insufficient.Instead,in order to establish historic rights in the waters of the South China Sea,it would be necessary to show that China had engaged in activities that deviated from what was permitted under the ‘freedom of the high seas’ and that other States acquiesced in such a right.32South China Sea Arbitration,Award of 12 July 2016,para.270.

Logically the Tribunal made a serious mistake here.Its conclusion that required China to establish its historic rights after satisfying two requirements:(1) engaged activities deviated from the norm of“freedom of the high seas”,and (2) having acquiescence from other States.As mentioned earlier,China’s over two-thousand years’ practice of its historic rights,did enjoy acquiescence from the SCS countries.And when that practice of historic rights was acquiesced by the Philippines,there was no such concept of“high sea”,nor of any“freedom of high seas”.Therefore,the logic should be reversed.Freedom of navigation,at least in this region,was created from the repeated practice of China’s tolerating free navigation in the SCS.The civilized,oriental traditional practice has become part of today’s international law of the sea.

The Tribunal is supposed to realize the value of“inter-temporal law”,when it said that“international law is not static.”Its problem is that it refuses to apply any law favorable to China.

Once more,it is necessary to emphasize that China’s historic rights to the South China Sea include the orderly establishment of free navigation rights.For more than two thousand years,well before international law was birthed,China and its neighboring countries upheld the orderly establishment of the right of free navigation in this area.In the SCS,the right to“free navigation”was practiced,acquiesced in,and never distinguished from the“historic rights”of China.Therefore,it is not the norms of ancient“historic rights”of the SCS that deviate from the new“freedom of the high seas”,which make it necessary to obtain any new acquiescence.It is exactly the opposite.Logically,China’s ancient norms of“historic rights”cannot deviate from the“freedom of the high seas”;as a result,the“freedom of high seas”in the modern international law should not deviate from the ancient norms of“historic rights”which it originates.

When China named the waters between its mainland and its Nansha Islands as“high seas”in 1958,China was very correct according to the new 1958 Convention on the High Seas.After 1982,however,that same water area should now be called“exclusive economic zone”,not“high seas”any longer.The law has not been static,as correctly emphasized earlier by the Tribunal.Yet the same water area that China enjoyed and still enjoys historic rights or titles,can still be described as its“historic waters”.The names of components of the SCS may have changed since 1958.The nomenclature for the SCS“historic water”,which consists of various“historic rights or titles”,has not changed.And international law obviously still acknowledges its legitimacy.

All these are based on the correct understanding of history and geography of this corner of the world.Yet,in the eyes of the arbitrators,seemingly the SCS region is too far away from Europe.

D.Misinterpretation of China’s Fishing Ban,China’s Objections to the Philippines’ Oil and Gas Exploration as well as the Demarcation of Blocks for Petroleum Exploration by CNOOC Within the U-shaped Line

Regarding the delimitation of China’s fishing zones,it is not a regulation only implemented in the SCS;it is regulated management in the adjacent waters where Chinese fishermen are most often engaged in fishing,including the South China Sea,the East China Sea,the Yellow Sea and the Bohai Sea.As the SCS is a semi-enclosed sea,coastal States have rights and obligations to coordinate the management of fishing activities.In accordance with Article 123 of the Convention,States bordering enclosed or semi-enclosed seas should cooperate with each other to manage,conserve,explore and exploit the living resources of the sea.33Art.123 of the Convention (Co-operation of States bordering enclosed or semi-enclosed seas):States bordering an enclosed or semi-enclosed sea should co-operate with each other in the exercise of their rights and in the performance of their duties under this Convention.To this end they shall endeavour,directly or through an appropriate regional organization:(a) to co-ordinate the management,conservation,exploration and exploitation of the living resources of the sea;(b) to co-ordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment;(c) to co-ordinate their scientific research policies and undertake where appropriate joint programmes of scientific research in the area;(d) to invite,as appropriate,other interested States or international organizations to co-operate with them in furtherance of the provisions of this article.

Thus to coordinate for protection of the fishery resources in the SCS is a duty that China has been performing.The coordination works should be done among the coastal States in the region,so that the zones to ban fishing can be more reasonably demarcated.Yet this demarcation job is not easy to complete,particularly when sovereign claims over the islands are overlapping.Therefore,before the zones can be jointly demarcated,for the purpose of effective preservation of the living resources,China has the very right to take any precautionary approaches in the SCS to preserve the living resources,not only for the benefit of the Chinese fishermen,but also for the benefit of all the peoples living in this semi-enclosed community.That includes the Philippines.34S.M.Garcia,The Precautionary Approach to the Fisheries:Progress Review and Main Issues (1995 -2000),M.H.Nordquist and J.N.Moore (eds.),Current Fisheries Issues and the Food and Agriculture Organization of the United Nations,Kluwer Law International,2000,pp.479～560.

Principle 15 of the Rio Declaration on Environment and Development,adopted at the United Nations Conference on Environment and Development in 1992,encourages such precautionary approaches.In 1995,the Food and Agriculture Organization of the United Nations adopted the Code of Conduct for Responsible Fisheries after years of efforts and the Agreement on the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks in the Convention on the Law of the Sea after two consecutive years of six meetings.

These international documents encourage States to take immediate and effective approaches to fulfill the precautionary principle for preserving the living resources in the ocean.If the arbitrators knew of the recent“the world’s largest marine protected area”in the Pacific Ocean announced by the US Government without any consultation with any other fishing entities in the world,35“Obama created the world’s largest marine protected area”,26 August 2016,Associated Press reported:“WASHINGTON — President Barack Obama on Friday (26 August2016)expanded a national monument off the coast of Hawaii,creating a safe zone for tuna,sea turtles and thousands of other species in what will be the world’s largest marine protected area.…The Papahanaumokuakea Marine National Monument will contain some 582,578 square miles,more than twice the size of Texas.”At http://www.bostonherald.com/news/national/2016/08/obama_creates_worlds_largest_marine_protected_area,30 August 2019.maybe they would realize the value of China’s precautious approaches in the South China Sea.

In short,all States have an obligation to coordinate and comply with fisheries management.If China’s delimitation of areas in which the fishing ban would apply overlaps with exclusive economic zones of other coastal States in the SCS,supposedly not meeting the best available scientific evidence or technology,it should only be the reason for the States involved in the SCS to start negotiations.It should not be a reason to deny China’s historic rights to fishing or fisheries management in the SCS.

Similarly,yet differently from the above fishing ban matters,when the Tribunal adopted the Philippines’ complain about that the Chinese National Offshore Oil Corporation (CNOOC) demarcates its blocks for petroleum exploration,particularly block BS16,that lies beyond 200 nautical miles from any feature in the SCS claimed by China,or that China objected to the Philippines’ Geophysical Survey and Exploration Contract 101 petroleum block,GSEC 10,and to the Philippines’ Service Contract 58,SC58 block,36South China Sea Arbitration,Award of 12 July 2016,paras.208～209.it tried to mislead the readers of the award by skipping any finding of the true intent of China.

The Tribunal mentioned in its award of 12 July 2016 that“despite the possibility that China’s claims were based on a theory of entitlement to continental shelf rights pursuant to the Convention,the framing of China’s objections strongly indicates that China considers its rights with respect to petroleum resources to stem from historic rights.”37South China Sea Arbitration,Award of 12 July 2016,para.209.Obviously,the Tribunal knew,but intentionally ignored,the said“theory”of the continental shelf,and further concludes abruptly that

With respect to the non-living resources of the seabed,the Tribunal does not even see how this would be theoretically possible.Seabed mining was a glimmer of an idea when the Seabed Committee began the negotiations that led to the Convention.Offshore oil extraction was in its infancy and onlyrecently became possible in deep water areas.Indeed,the China National Offshore Oil Corporation itself was only founded in 1982,the same year that China signed the Convention.With respect to the seabed,the Tribunal does not see any historical activity that could have been restricted or controlled,and correspondingly no basis for a historic right.38South China Sea Arbitration,Award of 12 July 2016,para.270.

Are the Chinese crazy or stupid enough to forget about the significant value of its continental shelf defined in the UNCLOS,and try to make their seabed oil drilling rights“historical”? The Tribunal’s statement based on common sense shows that it is in lack of common sense.The truth is so simple.China has its U-shaped line demarcated in 1947,as a gentle proposed,not-yet-finalized maritime boundary line between neighboring countries and herself.Yet China has never stopped insisting on its rights as provided for in the 1982 Convention,including the rights of its exclusive economic zone and its continental shelves in the SCS region.China is a legitimate contracting party State of the Convention,since the very beginning of the Convention.

To sum up,the Tribunal misunderstood the legitimate position of China,and jumped into conclusions when it cited the Philippines’ argument that“the nature of China’s claim as one of sovereign rights and jurisdiction is confirmed by China’s conduct in seeking to ban fishing by other States within the ‘nine-dash line’;(b)interfering with the Philippines’ petroleum exploration activities;and (c) offering concessions to oil blocks in areas within the ‘nine-dash line’ but beyond the possible limits of China’s entitlements under the Convention.”39South China Sea Arbitration,Award of 12 July 2016,para.190.Merits Hearing Tr.(Day 1),pp.22～24.See also the Philippines’ Position in respect of its Submission No.8 at paragraphs 681 to 686 below.

Also,when the Tribunal cited the Philippines’ argument that“the Philippines considers that China’s conduct makes clear that its claim is not to sovereignty over the entire area within the ‘nine-dash line’,insofar as China has repeatedly asserted that it respects freedom of navigation and overflight in the South China Sea,”40South China Sea Arbitration,Award of 12 July 2016,para.190.Merits Hearing Tr.(Day 1),pp.24～27.the Tribunal improperly destroyed the value of good faith and amity in the international community by making China suffer from its friendly gesture to allow the thousandyear old,traditionally established free navigation be continued in the SCS.

Last but not least,when the Tribunal adopted the Philippines theory that the latter’s“interpretation of China’s position has been adopted by ‘numerous’ Chinese scholars,including those with significant links to the government,”41South China Sea Arbitration,Award of 12 July 2016,para.191.Merits Hearing Tr.(Day 1),pp.27～28;Memorial,para.1.23;Z.Gao and B.B.Jia,The Nine-Dash Line in the South China Sea:History,Status,and Implications,American Journal of International Law,2013,Vol.107,No.1,p.98,pp.123～124.we regretfully find that only one single piece of scholarly works prepared in English was admitted by the Tribunal as its evidence.The many opinions of“numerous”Chinese scholars who prepared their scholarly works mostly in Chinese,which happens to be one of the six official languages used in the United Nations,were intentionally ignored.

Therefore,the conclusion mistakenly made by the Tribunal that

Taken together with the conclusion above about the grant of petroleum blocks and China’s frequent references to historic rights without further specification,the Tribunal concludes that China does claim rights to petroleum resources and fisheries within the ‘nine-dash line’ on the basis of historic rights existing independently of the Convention42South China Sea Arbitration,Award of 12 July 2016,para.211.

should be modified and corrected as follows:

(a) Taken together with the conclusion above about the grant of petroleum blocks and China’s frequent references to historic rights without further specification,the Tribunal concludes that it cannot but find that China does claim rights to petroleum resources and fisheries in the eastern and northern sections of the South China Sea,not only on the basis of its historic rights existing independently from the Convention,but also,on the UNCLOS to which China is a serious contracting Party State.

(b) As to China’s repeated proclamation of freedom of navigation and overflight in the South China Sea region,it is solidly based on the long-time established tradition of this specific region,intended with admirable good faith and international amity,and it is fully supported by this Tribunal.