Analyzing the illegality and invalidity of the South China Sea Arbitration Awards via six 'whys'

V. Why is it wrong for the awards to deny China's claim of historic rights in the South China Sea?

The arbitral tribunal concluded that China's claims of historic rights in the South China Sea exceeded the provisions of the Convention, leading to legal mischaracterization and erroneous finding that China had no historic rights in the South China Sea. In terms of time, the tribunal incorrectly held that China's claims of historic rights began in 2009. In terms of characterization, the tribunal erred in limiting China's historic rights in the South China Sea to rights over natural resources, thereby disregarding its sovereign historic rights. In terms of scope, the tribunal erroneously limited China's historic rights to functional rights concerning resources and activities, overlooking China's historic rights over Nanhai Zhudao and relevant waters. Furthermore, the tribunal erroneously characterized China's navigation, fishing, resource exploitation and other activities in the South China Sea as exercising freedom of the high seas rather than exercising historic rights.

China enjoys historic rights in the South China Sea, supported by historical evidence and domestic legal frameworks. Chinese activities in the South China Sea trace back over 2,000 years, with continuous habitation and utilization of the Nanhai Zhudao and relevant waters by the Chinese people since time immemorial. China is the first to discover, name, explore, and exploit these areas, establishing sovereignty and jurisdiction continuously, peacefully, and effectively, thus establishing territorial sovereignty and relevant rights and interests in the South China Sea. Legal instruments such as the 1998 Law on the Exclusive Economic Zone and the Continental Shelf of the People's Republic of China, the 2016 Provisions of the Supreme People's Court on Several Issues concerning the Trial of the Relevant Cases Occurring in Sea Areas under the Jurisdiction of China, and the Statement 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 of July 12, 2016 reaffirm and recognize China's longstanding historic rights in the said areas.

China's historic rights in the South China Sea have a solid basis in international law. Historic rights are mainly regulated by customary international law and are matters not regulated by the Convention. The travaux preparatoires of the Convention indicate that it does not intend to deal with or replace historic rights under general international law. The Convention makes several references to "historic bays," "historic title," and "historically," demonstrating its deference to historic rights. Numerous international cases, such as the judgment of the ICJ in the Continental Shelf (Tunisia v. Libyan Arab Jamahiriya, 1982), have confirmed the importance of preserving historic rights. Further, many countries, including Russia, Canada, Pakistan, and Sri Lanka, advocate for historic rights beyond their territorial waters. Many highly qualified publicists, such as former Deputy Legal Adviser in the United Kingdom's Foreign & Commonwealth Office Chris Whomersley, former Israeli Ambassador to the United Nations Yehuda Z. Blum, Greek international law scholar Sophia Kopela, and Italian international law scholar Andrea Gioia also support the existence of historic rights beyond the scope of the Convention.