Abstract：The Award of the South China Sea Arbitration was issued on 12, July, 2016. The Award has a lot of legal arbitration fallacies in the identification of historic rights and rocks as well as other serious flaws on many legal issues. (1) Historic rights of China in the South China Sea are deeply rooted in international customary law and should not be interpreted and modified according to the provisions of the United Nations Convention on the Law of Sea. The Award of the South China Sea Arbitration denies China's claims to historic rights within the South China Sea on the basis of the wrong interpretation of the article 298(1)a(i) and the article 311 of the United Nations Convention on the Law of Sea. This is a mistake in applying articles of UNCLOS. (2) The Award of the South China Sea Arbitration considers that China's relevant rights comprise a claim to historic rights to living and non-living resources within the Nine-Dash Line. The United Nations Convention on the Law of Sea does not include any express provisions preserving or protecting historic rights which are at variance with the Convention. The Tribunal considers the text and context of UNCLOS to be clear in superseding any historic rights that a state may once have had in the area that now forms part of the exclusive economic zone and continental shelf of another state. Furthermore, the Tribunal considers that the Convention is clear in according sovereign rights to the living and non-living resources of the exclusive economic zone to the coastal state alone. For China's relevant rights comprise a claim to historic rights to living and non-living resources within the Nine Dash Lines, partially in areas that would otherwise comprise the exclusive economic zone or continental shelf of the Philippines. The Tribunal cannot agree with this position. Obviously and objectively, the Tribunal takes step into the situation of involvement in the maritime delimitation between China and the Philippines. But according to Article 298 (1) of UNCLOS, the Arbitral Tribunal has no jurisdiction over the disputes concerning maritime delimitation. (3) Although the historical records have shown that some fishermen had been living on features of Nansha, China, the Tribunal considers that it cannot be considered to form a settled community on Spratly Islands because there was no description of conditions on the features suggesting that the population intended to reside permanently among the islands. Furthermore, commercial activities over these features comprise of mining and fishing which are centered on the sea areas adjacent to the feature and belonging to natural harvest, using offshore resources instead of features themselves. Distant fishermen exploited the territorial seas surrounding a small rock and made no use of the feature itself. However, they would not suffice to give the feature an economic life of its own. Nor would an enterprise be devoted to extracting the mineral resources of the seabed adjacent to such a feature and making no use of the feature itself. None of the high-tide features in the Spratly Islands is capable of sustaining human habitation or an economic life of their own. Such features are rocks and shall have no exclusive economic zone or continental shelf. Thus, the Tribunal wrongfully interprets and applies the article 121 (3) of UNCLOS, adding a new subjective element into the phrase of ″human habitation.″Eventually, the Tribunal judges whether marine features have the ability to maintain human habitation or their own economic activities by ″if there exited a stable community in history.″ Moreover, there exist many logical doubts in the Award. (4) As a response, China should reveal the illegality of Award by issuing government white papers and research reports with careful legal analysis of the South China Sea Award developed by independent institutions. At the same time, it should actively promote re-examining the position of Annex Ⅶ in UNCLOS by the international society, seeking to modify the compulsory arbitration framework in Annex Ⅶ and play an important role in making UNCLOS more perfect.
王小军. 南海仲裁裁决之法律谬误分析——历史性权利与岩礁认定[J]. 浙江大学学报(人文社会科学版), 0, (): 1-.
Wang Xiaojun. Legal Mistakes in the Award of South China Sea Arbitration： Historic Rights and Identification of Rocks. JOURNAL OF ZHEJIANG UNIVERSITY, 0, (): 1-.