East Sea: How can China’s irrational arguments be disposed of?

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VietNamNet Bridge – This article points out the absurdity of the arguments of China and pro-China scholars against the Permanent Court of Arbitration’s (PCA) ruling.

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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].

East Sea: How can China’s irrational arguments be disposed of?, Government news, Vietnam breaking news, politic news, vietnamnet bridge, english news, Vietnam news, news Vietnam, vietnamnet news, Vietnam net news, Vietnam latest news, vn news
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.

http://english.vietnamnet.vn/fms/marine-sovereignty/170152/east-sea–how-can-china-s-irrational-arguments-be-disposed-of-.html

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