Abstract
Submissions 1 & 2 of the Philippines concern
the legality of China’s maritime rights in the South China Sea under the United
Nations Convention on the Law of the Sea (UNCLOS). However, when identifying the
object of the claim and defining the nature of the dispute, the Arbitral
Tribunal decided that these two Submissions reflected a dispute solely
concerning China’s claimed historic rights in the South China Sea. In this
connection, even if the Tribunal follows the assumptions conceived by the
Philippines on China’s historic rights and denies China of its historic rights
in the South China Sea, China may still claim maritime rights in the South China
Sea in accordance with UNCLOS.
The question that the Philippines must address
first relates to the Tribunal’ jurisdiction over disputes involving historic
rights. In this regard, the Philippines mainly contends: “historic bays or titles” under
Article 298 that can be used as an objection to the Tribunal’s jurisdiction only
refer to sovereignty, while the historic rights claimed by China are short of
sovereignty, therefore such rights do not bar the Tribunal’s exercise of
jurisdiction. Nevertheless, the negotiating history and official languages of
the UNCLOS, as well as the wording of its Article 298 show that “historic
titles” under Article 298 do not refer to sovereignty only. Consequently, the
dispute involving China’s historic rights is covered by Article 298, and should
be excluded from compulsory arbitration.
After establishing the Tribunal’s jurisdiction
over the dispute involving China’s historic rights, the Philippines raises its assumptions on the
limits and content of the historic rights China claimed in the South China Sea,
as well as the time China made such claims. It defines China’s historic rights
as the sovereign rights and jurisdiction to the living and non-living resources
lying between the outer limits
of China’s maritime entitlement
under UNCLOS and the dotted line. The Philippines further asserts that
China’s claims of historic rights were made in 1998. Notably, the Philippines’
description of China’s claimed historic rights is incorrect. Actually, China’s
rights in the South China Sea were acquired through long-term State practices,
which govern the claims of rights to the islands and waters encompassed by the
dotted line. Such historic rights should not be any specific right or an
assembly of certain rights; rather, they should be the rights over the maritime
space enclosed by the dotted line in its entirety.
Based on its assumptions on the basic facts
relating to China’s historic rights, the Philippines demonstrates that China’s
historic rights have no legal effect under the UNCLOS. The underlying logic behind the
Philippines’ argumentation is: in the legal order for the seas and oceans, the
UNCLOS provides a comprehensive regulatory scheme and has a prevalence over
other laws. Therefore, the historic rights, which have not been reserved by the
UNCLOS, cannot limit the rights under UNCLOS. The report, denying the UNCLOS as the
constitution for the oceans, demonstrates that the UNCLOS fails to cover the
relation between all categories of historic rights and the rights under itself.
It subsequently concludes that,
China’s historic rights should be governed by the rules of general international
law, because they have not been regulated by the UNCLOS. The two States should,
in a spirit of mutual understanding and cooperation, settle the de
facto conflict between China’s historic rights and the rights the
Philippines enjoyed under the UNCLOS.
Additionally, the Philippines argues that China
lacks evidences to prove that the historic rights it claimed meet the standards
in general international law. In this section, the Philippines quoted a great
number of historical data and used them as evidences. The center of its argument
reads as follows: China’s claim of territorial sovereignty over the South China Sea Islands is
not made at the same time with its claim for maritime rights in the South China
Sea waters, because China only began to claim the territorial sovereignty over
these islands from the 1930s, and claimed the foregoing maritime rights as late
as 1998. However, with respect to China’s claim of sovereignty over the South
China Sea Islands, China has evidences to prove that the truth is contrary to
the Philippines’ allegation.