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

FU Kuen-chen ； HUANG Yuxin ； ZENG Yan ； Maria Elena Indelicato

《中华海洋法学评论》 31期 (2019/09) Pp. 14-32

摘要

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.

關鍵字

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