Misattribution of China’s Historic Rights to the South China Sea by the 2016 South China Sea Arbitration Tribunal (Part II)

FU Kuen-chen

Abstract: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 a)misinterpreting the timing and seriousness of China’s claims for historic rights in SCS;b)misinterpreting the transliteration of the foreign names of some reefs in the SCS;c)distorting the historic fact that China has always respected the right to freedom of navigation;d)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;e)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 Sea (hereinafter referred to as“the Convention”).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 the Convention,and has repeatedly and deliberately demonized specific evidence 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.

Key Words:China’s historic rights to the South China Sea;Free navigation;Hai-jin (Sea-Forbiddance);Post-World War II international order;United Nations Convention on the Law of the Sea

[Editor’s note]:

As this article is too long,we divide it into two parts.This issue presents the second part of the article while the first part is presented in the last issue.For the perusal of our readers,the article’s contents are listed below:

I.The Tribunal’s Misinterpretations of China’s Claims for the Historic Rights and to the SCS

A.Misinterpretation of the Timing and Seriousness of China’s Claims for the Historic Rights

B.Misinterpretation of China’s Transliteration of the Names of Some Islands and Reefs in the SCS

1.Connection Between Chinese Names of the SCS Islands and Chinese History

2.Diversification of the Names of the SCS Islands in Chinese and Inconsistency with the Translated Names in Foreign Languages

3.Unified Management of Naming the SCS Islands by the Chinese Government

C.Misinterpretation of China’s Respect for Free Navigation

D.Misinterpretation of China’s Fishing Ban,China’s Objections to the Philippines’ Oil and Gas Exploration as well as the Demarcation of Blocks for Petroleum Exploration by CNOOC Within the U-shaped Line

II.The Tribunal’s Misinterpretations of the Source of China’s Historic Rights and to the SCS

A.Neglecting the Special Geographic and Historical Conditions in the SCS

B.Ignoring the Historical Materials Concerning China’s Practice of the Historic Rights to the SCS

1.China First Discovered and Utilized the Reefs and Waters in the SCS

2.China’s Exercising Sovereignty via Various Activities in the SCS

3.China’s Sovereign Control over the Reefs and Waters in the SCS in the 20th Century

C.Misinterpretation of China’s Hai-Jin (Sea-Forbiddance)

D.Distortion on the History of Post-war Order Reconstruction

III.The Hasty Argument on China’s Historic Rights in the SCS

A.The Tribunal Seriously Violates the Legal Obligation of the Convention,Claiming China’s Statement in responde to the award on“Jurisdiction and Admissibility”rendered by the Tribunal as the“Most Insightful Formulation”of China’s Claims to the SCS

B.The Tribunal Admits Its Award Lacking Evidence,Conceals Facts,and Determines China’s Rights in the South China Sea Being Fishing Rights Only

C.The Tribunal Attempts to Mislead the Reader through the Article of Reservation in the Convention,Erroneously Determining that China’s Claims Supersede the Convention Widely

D.The Tribunal Repeatedly and Deliberately Demonizes China

E.The Tribunal Recognizes the Inclusive Flexibility of Historic Rights,but Unreasonably Determines that China’s Rights Supersede the Convention and Deliberately Waives Favorable Evidence on the Pretext of No Jurisdiction,Evading Article 56(2)of the Convention When Referring to the Same Article 12 Times in Its Award

IV.The Tribunal’s Absurd“Mosquito Logic”and Its Serious Damage to the International Rule of Law

II.The Tribunal’s Misinterpretations of the Source of China’s Historic Rights to the SCS

A.Neglecting the special Geographic and Historical Conditions in the sCs

When making its arbitral award,the Tribunal ignored the special geographic factors of the SCS.Prior to the First UN Conference on the Law of the Sea,the UN Secretariat prepared an influential memorandum on historic bays in 1957 which noted as follows:

The theory of historic bays is of general scope.Historic rights are claimed not only in respect of bays,but also in respect of maritime areas which do not constitute bays,such as the waters of archipelagos and the water area lying between an archipelago and the neighbouring mainland;historic rights are also claimed in respect of straits,estuaries and other similar bodies of water.There is a growing tendency to describe these areas as“historic waters”,not as“historic bays”.1United Nations,Historic Bays:Memorandum by the secretariat of the United Nations,UN Doc.A/CONF.13/1,para.8 (30 September 1957).south China sea Arbitration,Award of 12 July 2016,p.93,para.220.

The UN report also recalled the observation of the International Court of Justice in Anglo-Norwegian Fisheries that“by ‘historic waters’ are usually meant waters which are treated as internal waters but which would not have that character were it not for the existence of a historic title.”2Anglo-Norwegian Fisheries (United Kingdom v.Norway),Judgment,ICJ Reports 1951,p.116 at p.130.south China sea Arbitration,Award of 12 July 2016,pp.93～94,para.220.

The SCS was originally named by Chinese people as“Nan Hai”(South Sea)because it locates right off the southern coast of China mainland.When Persian and Arabian merchants arrived in China in large numbers during the 10th-17th century,they marked this water area as“China Sea”or“China Bay”on their charts,because they found that it was so close to China and China was in actual control of this sea area.3Prof.Yai ji-de of Yunnan University found 50 ancient maps from Iran National Archive,Tehran University Library Manuscripts Room and Iran parliament Library.They all marked the South China Sea as“China Sea”or“China Bay”.See:Chinese and Iranian scholars reveal ancient maps of Iran,the South China Sea has been marked as“China Sea”,at http://www.chinanews.com/gn/2016/06-15/7904655.shtml,15 June 2016.This semi-enclosed water area locates among China Mainland,Taiwan Island,Luzon Island,Palawan Island,Kalimantan Island,Malay Peninsula and the Indochina Peninsula.The SCS connects with the Pacific Ocean through Bashi Strait and Balintang Strait,connects with the Sulu Sea through the Mindoro Strait and the Balabac Strait,connects with the East China Sea through Taiwan Strait,connects with the Andaman Sea through the Strait of Malacca,and connects with the Java Sea through Karimata Strait and Gaspar Strait.The 1968 Britannica World Atlas measures the area of the SCS,including Siam Gulf and Burneo Sea,as 895,400 square miles.4Britannica World Atlas,Encyclopedia Britannica,Inc.,1968.The US Department of State Geographic Bulletin,revised in October 1969,also records a similar area of the SCS as 895,000 square miles,or 2,322,000 square kilometers.5Us Department of state geographic Bulletin,No.3,“Sovereignty of the Sea”,revised October 1969.See also H.Gary Knight,The Law of the sea:Cases,Documents and readings,Louisiana:Claitor’s Law Books &Publishing Division,1978.

The 1947 Chinese U-shaped,sectioned line encompasses only the east and north parts of the SCS.From any aspect,this narrow water area locates between China’s mainland and its Nansha Islands.This fits the observation of the UN memorandum for“historic bay”or“historic water”as“water area lying between an archipelago and the neighbouring mainland.”6United Nations,Historic Bays:Memorandum by the secretariat of the United Nations,UN Doc.A/CONF.13/1,para.8 (30 September 1957).south China sea Arbitration,Award of 12 July 2016,p.93,para.220.

In 1962,following the Second UN Conference on the Law of the Sea,the UN Secretariat produced another memorandum on historic waters.The memorandum analyses the formation of historic title as a process of acquiring a historic right7United Nations,Juridical Regime of Historic Waters,Including Historic Bays,UN Doc.A/CN.4/143,9 March 1962.paras.80～148.—a term which is used generally—and concludes that:

In determining whether or not a title to“historic waters”exists,there are three factors which have to be taken into consideration,namely:

(i)The authority exercised over the area by the state claiming it as“historic waters”;

(ii)The continuity of such exercise of authority;

(iii)The attitude of foreign states.8United Nations,Juridical Regime of Historic Waters,Including Historic Bays,UN Doc.A/CN.4/143,9 March 1962,para.185.Having reviewed the historic materials on the thousand-year practice of China in the SCS region,it is safe to conclude that the Chinese historic rights or titles to its“historic waters”in the SCS do fit all these three theoretical considerations.

In the 1951 Fisheries Case (United Kingdom v.Norway),Norway advanced a vital interest rationale grounded in geography and human security.Norway went to lengths to ensure the impugned practice was measured,reasoned and reasonable in the circumstances.The argument in geography was important because the general customary rule to which it sought an exception was based on coastal geography.And eventually the majority of the Court concluded that“the method of straight baselines established … was imposed by the peculiar geography of the Norwegian coast”.9Aldo Chircop,Gidel’s Safety Valve:The Anglo-Norwegian Case,1951 and the Doctrine of History Waters Revisited,Public International Law Colloqium on Maritime Disputes settlement,Hong Kong:Chinese Society of International Law and Hong Kong International Arbitration Centre,2016,p.352.

Indeed,as some prominent international publicists noticed,“the regime of historic waters,although long attracting attention in intergovernmental,judicial and scholarly arenas,does not enjoy uniform understanding and commonly observed rules beyond a few basic principles and at a high level of generality applied on a case by case basis.”10Aldo Chircop,Gidel’s Safety Valve:The Anglo-Norwegian Case,1951 and the Doctrine of History Waters Revisited,Public International Law Colloqium on Maritime Disputes settlement,Hong Kong:Chinese Society of International Law and Hong Kong International Arbitration Centre,2016,p.340.According to Gilbert Gidel,the doctrine of historic waters is a necessary,but an exceptional theory that acts as a“safety valve”in the delimitation of maritime space to accommodate unique geographical situations,possibly through the avoidance of general rules.11Gilbert Gidel,Le Droit International Public de la Mer,Vol.3,Les Établissements Mellottée,1934,p.651.An alternative view holds that the regime of historic waters supports consideration of title on its own merits.See UN Secretariat,Juridical Regime of Historic Waters Including Historic Bay,Doc.A/CN.4/143,9 March 1962.

Due to the natural force of the East Asian monsoon,the large population living along the southeast coast of China’s mainland sailed,discovered,utilized and administered the SCS far before anyone in the region.The special geographical situation and vital national interests of China made all its claims sustain in the SCS.The Chinese peaceful and continuous sovereignty over those usually uninhabited islets and the adjacent waters for a very long period of the region’s history was acquiesced or acknowledged by the community,until the early 1970’s when oil and gas were reported richly reserved in the seabed of this semi-enclosed sea.Some islets of the Nansha Islands were quietly occupied,in violation of international law,by several neighboring States,when China itself was then busy in civil war after the massive destructive the Second World War.All these and other difficulties for the success of Chinese claims are political,not legal.

Admittedly,historic rights or historic waters claims are difficult issues,and can only be fairly and equitably treated on a case by case basis,because of the complex combination of geographical,historical,socio-economic,security and political considerations.Although the Tribunal chose to avoid hard research works on mountainous materials in Chinese language,and refused to take into account the commonly appreciated geographical and historical considerations in awarding the historic rights or titles to the Chinese sovereignty in the SCS,the Tribunal did emphasize that,due to the statutory forbiddance provided for in the Convention,it had no authority to treat any dispute concerning to territorial sovereignty or maritime boundary delimitation issues.12south China sea Arbitration,Award of 12 July 2016,pp.107～108,para.254.Thus the Award itself has become a useless object beyond the horizon.It does not resolve any disputes,if any,and created no order for the region.

The only possible persuasive reasoning for the Tribunal to deny China’s historic water claims in the SCS might be another geo-political one:This water area is simply too important for the world’s trading and shipping services to be blocked by China.Unfortunately,again,the Tribunal chose to avoid this non-legal analysis and tried to pretend to be legally authoritative.We certainly understand the reason.Because we clearly know that even if the Tribunal chose to give that geopolitical considerations in its award,denying all the Chinese historic rights or titles in the region,it will not work.China has never stopped the right of free navigation in the narrow water in front of its homeland and between its mainland coast and its Nansha Islands.

B.Ignoring the Historical Materials Concerning China’s Practice of the Historic Rights to the sCs

When the Tribunal concluded in its 12 July 2016 Award that China claimed only the historic rights in natural resources,it was making another serious mistake.The Tribunal mistakenly deemed itself“faced with the question of whether the Convention allows the preservation of rights to resources which are at variance with the Convention and established anterior to its entry into force.”13south China sea Arbitration,Award of 12 July 2016,p.98,para.235.The historic rights claimed by China on the basis of her thousand-year practice in the region are far more profound than rights to resources.

The Tribunal also mistakenly deemed that China“engaged in activities that were permitted to all States by international law,as did the Philippines and other littoral States surrounding the South China Sea.”14south China sea Arbitration,Award of 12 July 2016,p.114,para.269.“For much of history,therefore,China’s navigation and trade in the SCS,as well as fishing beyond the territorial sea,represented the exercise of high seas freedoms.”15south China sea Arbitration,Award of 12 July 2016,p.114,para.269.And“[h]istorical navigation and fishing,beyond the territorial sea,cannot therefore form the basis for the emergence of a historic right.… Evidence that merely points to even very intensive Chinese navigation and fishing in the SCS would be insufficient.”16south China sea Arbitration,Award of 12 July 2016,p.114,para.270.All these mistakes made by the self-righteous Tribunal are based on its lack of knowledge of Chinese history.We thus have to spend some time on the subject.

There are numerous pieces of evidence to prove that China has territorial sovereignty over Nanhai Islands and their adjacent waters,and Chinese scholars have been writing lots of works for many years.However,the Tribunal that lacks jurisdiction was not willing to admit the basic fact concerning relevant issues when writing the Award.This is not what this article intends to focus on.What we are trying to say is that it was wrong when the Tribunal wrote down the aforementioned conclusions.

The Chinese people engaged much more types of activities than just“historical navigation and fishing”in the SCS.This ancient and oriental civilization offers people profound evidence from its more than two thousand years of navigational experiences in the SCS.And its evidence certainly not merely points to“very intensive Chinese navigation and fishing in the South China Sea.”

Following are some samples of historical evidence indicating how China acquired and exercised its sovereignty in the SCS:Firstly,the evidences indicate that China discovered and utilized the SCS,including its islands and waters,far earlier than any other people in the world.Secondly,the evidences indicate that China has engaged various activities,including the State sovereignty activities,in the region for hundreds,if not thousands,of years.Thirdly,the Chinese states sovereign activities engaged in the region were acquiesced or expressly acknowledged by the neighboring States.

Since the third point has been evidenced positively in previous Subsection of this Chapter,here we are giving more evidence on the first and the second points in the following paragraphs.

1.China First Discovered and Utilized the Reefs and Waters in the SCS

Xisha Islands and Nansha Islands have been considered as dangerous regions in the ancient Chinese nautical history due to their numerous islets and reefs.Relevant to this topic are many ancient records,some of which can be dated back to Donghan Dynasty (25-220 CE).Yang Fu of the Eastern Han Dynasty wrote Yi Wu Zhi (An Account of strange Things)noting the existence of“many reefs and islets in Zhanghai (the earliest Chinese name of the SCS),and the water is so shallow that once ships equipped with iron paddles arrive,their iron paddles seem to be attracted to magnets.”17TANG Zhou (Ming Dynasty)ed.,Zhengde Qiongtai Zhi [Chronicle of Qiongtai Prefecture under Emperor Zhengde’s Reign],p.14;as cited in HAN Zhenhua eds.,Compilation of Historical Accounts on south China sea Islands,Beijing:Oriental Publishing House,1998,p.23.(in Chinese)

During the period of the Three Kingdoms,Wan Zhen,who lived in the Wu Kingdom (222-280 CE),wrote Nan Hai Yi Wu Zhi (An Account of strange Things in the south China sea)similarly deeming the SCS dangerous water area.18LI Fang (Song Dynasty),Taiping Yu Lan (Imperial Readings of the Taiping Era),Shanghai:Zhonghua Book Company,1963,Part 790,p.3501;as cited in HAN Zhenhua eds.,Compilation of Historical Accounts on south China sea Islands,Beijing:Oriental Publishing House,1998,pp.1,25.(in Chinese)His contemporary Kang Tai in Fu Nan Zhuan (An Account of Fu Nan)also left us a description of the SCS islands and reefs:“In Zhanghai,mountainous coral grow in coral shoals”.19LI Fang (Song Dynasty),Taiping Yu Lan (Imperial Readings of the Taiping Era),Shanghai:Zhonghua Book Company,1963,Part 790,p.3501;as cited in Han Zhenhua eds.,Compilation of Historical Accounts on south China sea Islands,Beijing:Oriental Publishing House,1988,pp.1,25.(in Chinese)

As a matter of fact,Han shu (General Chronicle of Han Dynasty)shows that a large number of Chinese tradesmen sailed to India in the earlier times.However,some historians believe that these records were probably edited by later generations of chroniclers,which is why they cannot be approached as reliable historical evidence.20WANG Gungwu ed.,translated by YAO Nan,Trade and People in southwest Asia,Chunghwa book company Hong Kong branch Press,1988,pp.27～29.(in Chinese)

Numerous historical records indicate that when Japanese,English and French arrived in these islands,they all found Chinese fishermen and captains,along with small temples,there.Fourteen coral temples from the Ming and Qing Dynasties were discovered in Xisha Islands.21HAN Zhenhua eds.,Compilation of Historical Accounts on south China sea Islands,Beijing:Oriental Publishing House,1998,pp.1,9;See also HUANG Caihong ed.,Distant Homeland,Beijing:Maritime Press,1991,pp.32～91;Guangdong Museum ed.,Xisha Relics -the survey on Cultural Relics of China’s Xisha Islands in the south China sea,Beijing:Cultural Relics Press,1975,pp.1～10,19～26.(in Chinese)Apart from that,when French landed on the Nansha Islands to carry out the so-called“occupation”,they found that the only people on these islands were Chinese.Seven of them were on the Nanzi Island(South West Cay),two of whom were children;five lived on the Zhongye Island(Thitu Island);four lived on the Nanwei Island.There are also remnants of places of worships,thatched cottages and wells left by the Chinese on the Nanyao Island(Loaita Island).A tablet with Chinese characters found on the Taiping Island(Itu Aba Island)documents the event of a Chinese trademan transporting rice to this island and leaving it under a stone cottage when failed to find someone else.The French followed the instructions on the tablet and surprisingly found the rice.Although they did not encounter any people on other islands,there was much evidence there to suggest that Chinese fishermen occasionally lived there.22FU Kuen-chen ed.,sovereignty and Mineral Deposits in the south China sea -History and Law,Taipei:Youth Culture Co.,1981,p.44.(in Chinese)Besides,the Ming Dynasty shipwrecks and copper coins from the period stretching from the Han to the Ming Dynasty,which weighted roughly 400 kilograms,along with copper billet and copper ingots,were salvaged near the North Reefs of the Xisha Islands.23HAN Zhenhua eds.,Compilation of Historical Accounts on south China sea Islands,Beijing:Oriental Publishing House,1998,p.5.(in Chinese）These relics prove not only that Chinese fishermen stayed,lived,and worshipped here,but also that the Chinese exploited Xisha Islands from long ago.

Additionally,Geng Lu Bu (Manual of sea Routes)is the sailing guide written for Hainan fishermen for conducting fishing activities in the SCS.It records about 30 traditional names that Hainan fishermen used for the islands and reefs in Xisha Islands and 70 names for Nansha Islands,which are still used today.Thorough research shows that Geng Lu Bu (Manual of sea Routes)first appeared in the early 18th century and by the mid-19th century,it was finalized as a comprehensive book.Since then it has been passed down from generation to generation.24HAN Zhenhua eds.,Compilation of Historical Accounts on south China sea Islands,Beijing:Oriental Publishing House,1998,p.6.(in Chinese)

More importantly,China is not only the first State that discovers islets and reefs in the SCS,but also the first State that controls these islets,reefs and relevant waters.China also engaged many State sovereign activities in the SCS,including its naval activities as we are to mention in the next paragraph.Although there were SCS navigational records,no specific records of naval patrolling in Han Dynasty(202-220 BC)and Tang Dynasty (618-907 AD),in the subsequent Song Dynasty(960-1279 AD),Yuan Dynasty (1271-1368 AD),Ming Dynasty (1368-1644 AD)and Qing Dynasty (1644-1911 AD),the Chinese Shui-shi (navy)constantly patrolled in this semi-enclosed narrow water,indicating China’s state control in the east and north parts of the SCS.And China’s jurisdiction constantly and effectively extended to the southern corner of the Nansha Islands.25HU Dekun,The Philippine’s South China Sea Arbitration Should Respect Historical Facts,Guangming Diary,7 June 2016.(in Chinese)

2.China’s Exercising Sovereignty via Various Activities in the SCS

A great number of historically recorded activities prove that the Chinese government held its jurisdiction over the islands,reefs and water areas in the SCS.The following paragraphs present these activities as we classified them into two chronological categories:before and after the 20th century.Before the 20th century,Chinese fishing boats and fishermen paying taxes to the Chinese government conducted abundant fishing activities in the SCS.This point is known to the world and no more words are needed.

For thousands of years,the Chinese navy has been patrolling in the SCS waters.Dating back to the Northern Song Dynasty,Wu Jing Zong Yao (Outline Record of Military Affairs),prefaced by Emperor Renzong of Song,not only records significant events concerning military system and national security,but also presents the fact that China’s navy patrolled the“Jiu Ru Luo Zhou”(Xisha Islands)at that time.This fact can also be retrieved from various works written during the Qing Dynasty,such as Du shi Fang Yu Ji Yao,Fang Hai Ji Yao,Yang Fang Ji Yao and so on.26HAN Zhenhua eds.,Compilation of Historical Accounts on south China sea Islands,Beijing:Oriental Publishing House,1998,pp.1,7.(in Chinese)

In the Ming and Qing Dynasties,the waters of Xisha and Nansha Islands were still in the patrolling area under the jurisdiction of of China’s navy,as noted in historical records.Guang Zhou Tong Zhi (General Chronicle of Guangdong),written by Huang Zuo in the Ming Dynasty period,points out that“we dispatch warships and naval vessels for maritime defense,starting from Nantingmen Harbour of Dongguan,passing the three seas of Wuzhu,Duzhu,Qizhou,then we are in the kunwei direction according to the compass till Wailuo”.From the 49th to 51th years of the reign of Emperor Kangxi in the Qing dynasty,WU Sheng (1710-1712 AD),deputy commander of the Guangdong navy,led an inspection tour in waters of the Xisha Islands.According to Quan Zhou Fu Zhi (General Chronicle of Quanzhou)in Emperor Qianlong of Qing Dynasty,“WU Sheng,promoted as a deputy commander of Guangzhou,was responsible for Qiongzhou.From Qiongya,to Tonggu,Qizhouyang and Sigengsha,he patrolled in person approximately three thousand kilometers”.“Qizhouyang Ocean”mentioned is the water areas of Xisha Islands,and the Guangdong province navy is in charge of the area at that time.

The Chinese government has marked Nanhai Islands as Chinese territory on official maps,as recorded in official local documents.Based on the geographical records of Jiu Tang shu and Qiongzhou Fu Zhi (Chronicle of Qiongzhou Prefecture),historians argue that the time when the Duhufu (Protectorate)of the Tang Dynasty was set up can be dated back to the first year of the reign of Emperor Tang Taizong.Nanhai Islands have been within China’s jurisdiction since Yazhou Duhufu (Yazhou Protectorate)was established in the same year (627 AD).27HUANG Caihong,Distant Homeland,Beijing:Maritime Press,1991,p.46.(in Chinese)Nanhai Islands has been under the administration of Wanzhou,Hainan Island,Guangzhou Province,after the Song Dynasty era.28HUANG Caihong,Distant Homeland,Beijing:Maritime Press,1991,pp.46～47.(in Chinese）It is also documented in the Qiong Guan Zhi,prefaced by YI Taichu (Song Dynasty),Zhu Fan Tu (Song Dynasty),Dao Yi Zhi (Yuan Dynasty),and Qiong Hai Fang Yu Zhi written by CAI Wei (in the late Yuan and early Ming Dynasty).29HUANG Caihong,Distant Homeland,Beijing:Maritime Press,1991,p.47.See also HAN Zhenhua eds.,Compilation of Historical Accounts on south China sea Islands,Beijing:Oriental Publishing House,1998,pp.1,100～102.(in Chinese);LIN Ronggui and LI Guoqiang,Comprehensive Study on the History and Geography of Nansha Islands,China’s Borderland History and Geography studies,Vol.1,1991,pp.78,83～87.(in Chinese）

The books about local geography published by the government of the Ming and Qing dynasties,namely,Guangdong Tong Zhi (General Chronicle of Guangdong),Qiongzhou Fu Zhi (Chronicle of Qiongzhou Prefecture)and Wanzhou Zhi (Chronicle of Wanzhou),include Xisha and Nansha Islands under the categories of“territories,”“mountains,”“seas”and“customs,”highlighting that“Wanzhou covers ‘Qianlichangsha’ and ‘Wanlishitang’”.“Qianlichangsha”and“Wanlishitang”here refer to Xisha Islands and Nansha Islands respectively,which are under the jurisdiction of Guangdong province.30HAN Zhenhua ed.,Compilation of Historical Accounts on south China sea Islands,Beijing:Oriental Publishing House,1998,pp.1,8.(in Chinese)

In the 1930s,Yang Fang Ji Yao,the book that professionally expounds maritime defense,not only marks Nanhai Islands in Zhi sheng Hai Yang Zong Tu (General Map of Geography of the“All Under Heaven”),but also clearly marks“Jiuruluozhou”of Xisha Islands in Guangdong Yang Tu (The sea Map of Guangdong Province).Both prove that Guangdong Province had jurisdiction over Xisha Islands.In the 1970s,GUO Songtao,the Chinese ambassador to the UK,clearly pointed out that Xisha Islands are Chinese islands in his book shi Xi Ji Cheng (On the Journey to the West).ZHANG Yide,the diplomat who accompanied GUO Songtao,made similar notes in his sui shi Ri Ji (Dairy of Accompanying the Emissary).31HAN Zhenhua ed.,Compilation of Historical Accounts on south China sea Islands,Beijing:Oriental Publishing House,1998,pp.1,8.(in Chinese)

Nautical charts and official territorial maps of the Ming and Qing Dynasty all explicitly mark Xisha Islands and Nansha Islands,which means that the sovereignty over these Islands belonged to China.ZHENG He Hang Hai Tu (“The Nautical Chart of ZHENG He”)marks“Shitang”and“Wanshengshitangyu”,referring to what today is known as the Xisha and Nansha Islands respectively.Furthermore,the Qing Dynasty governmen marked Xisha Islands and Nansha Islands as“Wanlichangsha”“Wanlishitang”on official maps such as its 1716 Da Qing Zhong Wai Tian Xia Quan Tu (“Global Map During the Great Qing Dynasty”),1724 Qing Zhi sheng Fen Tu (“Map of Provinces under the Qing Government Jurisdiction”)and so on.32HAN Zhenhua ed.,Compilation of Historical Accounts on south China sea Islands,Beijing:Oriental Publishing House,1998,pp.1,8.(in Chinese)Kublai Khan,Emperor Shizong of Yuan,sent GUO Shoujing to Xisha Islands to conduct astronomical survey.This act can be understood as another example of exercise of China’s sovereignty over the region .33GUO Shoujing,a famous astronomer and an Tongzhi for Taishiyuan,was in charge of the national astronomical measurements.According to Yuanshi (Records of Yuan Dynasty),there were 27 spots ranging from Zhuya in the south to Tiele in the north to observe and measure astronomical subjects.GUO“arrived in the Nan-Hai”and“calculated that it lied at 15 degrees north latitude.”The“15 degrees north latitude”of the Yuan system (365.25 degrees in a circle)is equivalent to 14.47 degrees north latitude of the modern system.Due to the limitations of scientific and technical conditions at that time,most of the measures had one degree deviation.The 14.47 degrees north latitude of the“Nan-Hai”plus one degree is on today’s Xisha Islands.(in Chinese)HAN Zhenhua eds.,Compilation of Historical Accounts on south China sea Islands,Beijing:Oriental Publishing House,1998,pp.1,9.(in Chinese)

Historical records on the measures taken to brace up the national coastal defense and punish pirates operating in the SCS are abundant.Apart from the long-term Hai-Jin (Maritime Prohibition—a measure introduced during the Ming Dynasty,when the government dispatched heavy guards to patrol over the SCS),reinforcing national coastal defense in order to punish Annamese (Annam was a kingdom in the present-day Vietnam)outlaws for leading an insurrection in the SCS was a vital policy during the 267-year (1644-1911 CE)reign of the Qing Dynasty.For instance,the Chinese government required the then ruler of Siam(Thailand)to help capture the head of bandits when necessary34Part 787 of Gao Zong shi Lu (Veritable Records of Emperor Qianlong),pp.1～2,in Yunnan Lishi Yanjiusuo (Yunnan Institute of History Study),Qing shi Lu:Yuenan Miandian Taiguo Laowo shiliao Zhaichao (Veritable Records of the Qing Dynasty:Extracts from the Historical Materials on Vietnam,Myanmar,Thailand and Laos),Kunming:Yunnan People’s Publishing House,1985,pp.877～879.(in Chinese)and the then Annamese ruler to help look for pirates.35Part 1380 of Gao Zong shi Lu (Veritable Records of Emperor Qianlong),pp.8～10;in Yunnan Lishi Yanjiusuo (Yunnan Institute of History Study),Qing shi Lu:Yuenan Miandian Taiguo Laowo shiliao Zhaichao (Veritable Records of the Qing Dynasty:Extracts from the Historical Materials on Vietnam,Myanmar,Thailand and Laos),Kunming:Yunnan People’s Publishing House,1985,pp.248～249.(in Chinese)The Chinese government also rewarded Annam36Part 1388 of Gao Zong shi Lu (Veritable Records of Emperor Qianlong),pp.4～5;in Yunnan Lishi Yanjiusuo (Yunnan Institute of History Study),Qing shi Lu:Yuenan Miandian Taiguo Laowo shiliao Zhaichao (Veritable Records of the QingDynasty:Extracts from the Historical Materials on Vietnam,Myanmar,Thailand and Laos),Kunming:Yunnan People’s Publishing House,1985,p.254.(in Chinese)and its then ruler for arresting the pirates in the SCS,37Part 13 of Ren Zong shi Lu (Veritable Records of Emperor Jiaqing),pp.6～7,in Yunnan Lishi Yanjiusuo (Yunnan Institute of History Study),Qing shi Lu:Yuenan Miandian Taiguo Laowo shiliao Zhaichao (Veritable Records of the Qing Dynasty:Extracts of the Historical Materials on Vietnam,Myanmar,Thailand and Laos),Kunming:Yunnan People’s Publishing House,1985,pp.278～279.(in Chinese)punishing soldiers who behaved irresponsibly;38Part 121 of Ren Zong shi Lu (Veritable Records of Emperor Jiaqing),p.2,in Yunnan Lishi Yanjiusuo (Yunnan Institute of History Study),Qing shi Lu:Yuenan Miandian Taiguo Laowo shiliao Zhaichao (Veritable Records of the Qing Dynasty:Extracts of the Historical Materials on Vietnam,Myanmar,Thailand and Laos),Kunming:Yunnan People’s Publishing House,1985,p.286.(in Chinese)It caught the head of Annamese pirates39Part 186 of Ren Zong shi Lu (Veritable Records of Emperor Jiaqing),pp.15～16,in Yunnan Lishi Yanjiusuo (Yunnan Institute of History Study),Qing shi Lu:Yuenan Miandian Taiguo Laowo shiliao Zhaichao (Veritable Records of the Qing Dynasty:Extracts of the Historical Materials on Vietnam,Myanmar,Thailand and Laos),Kunming:Yunnan People’s Publishing House,1985,pp.289～290.(in Chinese)and fourteen pirate ships;40Part 234 of Xuan Zong shi Lu (Veritable Records of Emperor Daoguang),pp.12～14;Part 243 of Xuan Zong shi Lu (Veritable Records of Emperor Daoguang),pp.28～30,in Yunnan Lishi Yanjiusuo (Yunnan Institute of History Study),Qing shi Lu:Yuenan Miandian Taiguo Laowo shiliao Zhaichao (Veritable Records of the Qing Dynasty:Extracts of the Historical Materials on Vietnam,Myanmar,Thailand and Laos),Kunming:Yunnan People’s Publishing House,1985,pp.300～306.(in Chinese)the Chinese government ordered the Annamese pirates to be executed without delay once found guilty,41Part 401 of Xuan Zong shi Lu (Veritable Records of Emperor Daoguang),p.8,in Yunnan Lishi Yanjiusuo (Yunnan Institute of History Study),Qing shi Lu:Yuenan Miandian Taiguo Laowo shiliao Zhaichao (Veritable Records of the Qing Dynasty:Extracts of the Historical Materials on Vietnam,Myanmar,Thailand and Laos),Kunming:Yunnan People’s Publishing House,1985,pp.320～321.(in Chinese)and so on.Besides,the Chinese government particularly emphasized that it should be the Chinese navy instead of the Annamese navy in charge of the capturing of pirates in the SCS,42Part 402 of Xuan Zong shi Lu (Veritable Records of Emperor Daoguang),pp.39～40;in Yunnan Lishi Yanjiusuo (Yunnan Institute of History Study),Qing shi Lu:Yuenan Miandian Taiguo Laowo shiliao Zhaichao (Veritable Records of the Qing Dynasty:Extracts of the Historical Materials on Vietnam,Myanmar,Thailand and Laos),Kunming:Yunnan People’s Publishing House,1985,pp.321～322.(in Chinese)and sent its naval vessels to regularly patrol in the Annamese waters and maintain security in the SCS.43Part 243 of De Zong shi Lu (Veritable Records of Emperor Guangxu),p.2;in Yunnan Lishi Yanjiusuo (Yunnan Institute of History Study),Qing shi Lu:Yuenan Miandian Taiguo Laowo shiliao Zhaichao (Veritable Records of the Qing Dynasty:Extracts of the Historical Materials on Vietnam,Myanmar,Thailand and Laos),Kunming:Yunnan People’s Publishing House,1985,p.377.(in Chinese)

The Chinese government also organized the search-and-rescue missions for foreign vessels in distress in the SCS.By relieving and repatriating these foreign ships,China exercised its sovereignty over the SCS region through local authorities.There were several cases of the Qing government saving foreign ships around the area of the Xisha Islands.44HAN Zhenhua eds.,Compilation of Historical Accounts on south China sea Islands,Beijing:Oriental Publishing House,1998,pp.1,9～10.(in Chinese)The cases documented in Qing shi Lu alone are enough to demonstrate China’s consistent acts of kindness.For example,five such cases happened in between 1738 and 1739.According to the historical records,the Chinese government constantly dispatched rescue teams,distributed food rations and subsidies,and escorted foreign sailors home.45Part 101 of Gao Zong shi Lu (Veritable Records of Emperor Qianlong),pp.1～2,in Yunnan Lishi Yanjiusuo (Yunnan Institute of History Study),Qing shi Lu:Yuenan Miandian Taiguo Laowo shiliao Zhaichao (Veritable Records of the Qing Dynasty:Extracts of the Historical Materials on Vietnam,Myanmar,Thailand and Laos),Kunming:Yunnan People’s Publishing House,1985,pp.26～27.(in Chinese)

It is clear that the Chinese government repeatedly opposed the foreign landing on the islands and reefs in the SCS without permission.In the 9th year of the reign of Emperor Guangxu (1883 CE),the German government attempted to survey Nansha Islands.The Chinese government expressed its disapproval to the German government,which then ended its survey.46Hungdah Chiu and Choon-ho Park,Legal Status of the Paracel and Spratly Islands,Ocean Development and International Law,Vol.3,No.1,1975,Note 47.See also FU Kuen-chen ed.,sovereignty and Mineral Deposits in the south China sea -History and Law,Taipei:Youth Culture Co.,1981,p.34.(in Chinese)Later,in the 33rd year of Emperor Guangxu (1907),Japanese merchant named Nisaikita secretly occupied the Dongsha Islands of China only to be expelled by the government of the Guangdong Province.47LI Zhun Xun Hai Ji (LI Zhun’s Journal of Patrolling the Sea),at http://www.nanhai.org.cn/info-detail/24/324.html,10 January 2019.（in Chinese）In 1938,France took advantage of the civil war in China and occupied the Xisha Islands.However,the protestation made by the Chinese government forced the French forces to leave the islands.The latter two cases happened during the 20th century.48Hungdah Chiu and Choon-ho Park,Legal Status of the Paracel and Spratly Islands,Ocean Development and International Law,Vol.3,No.1,1975,p.13,Note 63.(See the following paragraphs for more details.)

3.China’s Sovereign Control over the Reefs and Waters in the SCS in the 20th Century

After the turn of the 20th century,the Chinese government’s sovereign control in the SCS region was stronger than in the centuries preceding it.Thus,in order to expel Japanese merchant Nisaikita for invading the Dongsha Islands in April 1907 the governor of Liangguang ZHANG Renjun ordered more than 170 officers and soldiers,including the admiral of Guangdong navy LI Zhun,his deputy officer WU Jingrong and LIU Yikuan,to head for the Xisha Islands on naval ships Fubo and Chenhang and examine them thoroughly.From April 2nd to 26th,they found fourteen islets;they also engraved in stone and hoisted the flag on two islands,namely,Fubo and Ganquan.49LI Zhun Xun Hai Ji (LI Zhun’s Journal of Patrolling the Sea),at http://www.nanhai.org.cn/info-detail/24/324.html,10 January 2019.（in Chinese）

When the French navy debarked on the Xisha Islands,the Chinese ambassador to France GU Weijun immediately lodged a protest.50Hungdah Chiu and Choon-ho Park,Legal Status of the Paracel and Spratly Islands,Ocean Development and International Law,Vol.3,No.1,1975,p.13,Note 63.After the eight-year Sino-Japanese War,Japan surrendered to the Allies on 26 August 1945.The supreme commander of the Allied forces demanded from all Japanese troops in Vietnam north of the 16 degrees North to surrender to China,which indicated that the north of Vietnam was under the military control of China and then China did send troops to occupy this area.51Hungdah Chiu and Choon-ho Park,Legal Status of the Paracel and Spratly Islands,Ocean Development and International Law,Vol.3,No.1,1975,p.17,Note 98.Meanwhile,there was a Japanese military pullback from the Xisha and Nansha Islands.52ZHENG Ziyue ed.,Geography of Nanhai Islands,Taipei:Taiwan Students Publishing House,1975,p.80.(in Chinese)When China handed this area back to France in April 1946,France did not claim sovereignty over the Xisha and Nansha Islands.53Hungdah Chiu and Choon-ho Park,Legal Status of the Paracel and Spratly Islands,Ocean Development and International Law,Vol.3,No.1,1975,p.17,Note 99.

Since the 20th century,the Chinese government has frequently undertaken a thorough investigation,positioning and naming of the islands in the SCS.From December 1934 to April 1935,the Chinese government established the Committee for the Examination for the Land and Sea Maps,which was composed of officials from the Ministry of Internal Affairs,the Ministry of Foreign Affairs,the Ministry of Naval Affairs,the Ministry of Education,among other high officials.The task of this Committee was to examine the land and water maps published throughout the State.54HAN Zhenhua ed.,Compilation of Historical Accounts on south China sea Islands,Beijing:Oriental Publishing House,1998,p.1,pp.11～13.(in Chinese)The Committee held two meetings,in December 1934 and March 1935 respectively,to check and approve the names of 132 islands,shoals,submerged reefs,banks and cays of the Dongsha,Xisha,Zhongsha and Nansha islands in the SCS.In April 1935,the Committee published The Maps of China’s Islands in the sCs,detailing the names and locations of islands,reefs,and beaches.55Geography of Nanhai Islands,Compiled and printed by the office of the Deputy Chief of Defense Intelligence of the Taiwan Authorities of China,30 June 1975,p.18.(in Chinese)

After the Second World War,on 2nd October 1946,the Chinese government sent officials from the Navy Headquarters,the Ministry of the Internal Affairs,the Ministry of the National Defense and the Guangdong Provincial Government on military vessels Taiping,Yongxing,Zhongye,Zhongjian to take over the Nanhai Islands.After four months,on 4th February 1947,the handover was completed.From then on,the garrison troops of China have begun to guard the Xisha and Nansha Islands.The Ministry of Internal Affairs released the Administrative Decision No.88 on 4th September 1947,declaring that the Dongsha,Zhongsha,Xisha,and Nansha Islands are under the jurisdiction of Guangdong Province.In addition,the Ministry of Internal Affairs translated all English names into Chinese and formally ratified new names of all the islands,reefs and beaches of the Nanhai Islands for the usage in Chinese maps.The U-shaped sectioned line was also published then.And,at that time and many years after that,no State raised any objections.56Hungdah Chiu and Choon-ho Park,Legal Status of the Paracel and Spratly Islands,Ocean Development and International Law,Vol.3,No.1,1975,p.14,Note 67.To standardize national toponyms and satisfy“the need of socialist modernization and the development of navigation industry”,the Chinese government examined the Nansha Islands’ names on the basis of the Interim Provisions of the state Council on Naming and Renaming of Place Names issued on 24th April 1983.The Committee on Toponyms of China issued the publication of standard toponyms (287 names)for the Nanhai Islands.57HAN Zhenhua ed.,Compilation of Historical Accounts on south China sea Islands,Beijing:Oriental Publishing House,1998,pp.1,11～13.(in Chinese)

As for the administrative management,apart from those mentioned above,the Chinese government set up the Hainan Administrative District on 1st April 1949 to take over the jurisdiction over the Xisha and Nansha Islands,which was still under the control of the Navy.58QIU Hongda,The Territorial Sovereignty over the Xisha and Nansha Islands,Human and society,Vol.2,August 1974,p.38.(in Chinese)The first clause of the Organization Regulations of“Hainan special Administrative Region (sAR)”released by the Taiwan Authority of China regulated that the“‘Hainan SAR’ included the Dongsha,Zhongsha,Xisha,and Nansha Islands,to mention a few of them,while the jurisdiction over large and small reefs,shoals,sandbanks,and submerged reefs was transferred to the ‘Hainan SAR’ though these islands were still controlled by the Navy”.59Geography of Nanhai Islands,Compiled and printed by the office of the Deputy Chief of Defense Intelligence of the Taiwan authorities of China,30 June 1975,p.18.(in Chinese)This is powerful evidence that the Chinese government has conducted measures of positive sovereignty administration of the Nanhai Islands.

In the post-World War II period,the international community acknowledged that the Nanhai Islands and waters belonged to China since the beginning of the 20th century.Article 2 of the“Bilateral agreement”signed by Japan and the Taiwan Authorities of China on 28th April 1952 stipulated that“Japan had renounced all rights and claims to Taiwan and the Penghu Islands,as well as the Nansha Islands and Xisha Islands.”60QIU Hongda,The Territorial Sovereignty over the Xisha and Nansha Islands,Human and society,Vol.2,August 1974,p.38.(in Chinese)

Declaration of the Government of the People’s Republic of China on China’s Territorial Sea,issued on 4th September 1958,proclaimed that the territorial sea would be expanded to 12 nautical miles,and the territorial waters will be defined by the Straight-line Baseline Method,which is also applied to the Xisha,Nansha Islands and those islands belong to China.61Hungdah Chiu and Choon-ho Park,Legal Status of the Paracel and Spratly Islands,Ocean Development and International Law,Vol.3,No.1,1975,p.15,Note 80.On 14th September of the same year, Phm Vn Đng,the Prime Minister of North Vietnam,admitted that the government of the Democratic Republic of Vietnam recognized,respected and endorsed the mentioned Declaration of the Government of the People’s Republic of China on the territorial sea.62China’s Indisputable sovereignty over the Xisha and Nansha Islands,Ministry of Foreign Affairs of the People’s Republic of China,30 January 1980,Ta Kung Pao (Hong Kong).(in Chinese)

The acquiescence and recognition of some international organizations and States can be well exemplified here.For instance,the headquarters of the U.S.military advisory group in San Francisco sent an official request to the Taiwan Authorities of China asking permission to land on the Nansha islands,which suggests the U.S.also approved the fact that the Nansha Islands belonged to China.63FU Kun-chen,LIU Li and JING Xiaojie eds.,The Exhibition of Historical Materials on the South China Sea CD,printed by Xiamen University,South China Sea Institute,1 March 2015.(in Chinese)

When the World Meteorological Organization carried out“World Weather Watch”from 1968 to 1971,it helped the Taiwan authorities of China build three atmospheric sounding stations in Dongsha and Nansha Islands.It is also written in the directory of Meteorological Stations,including Dongsha and Nansha Islands as part of China.None of the member States raise opposite views.64Geography of Nanhai Islands,Compiled and printed by the office of the Deputy Chief of Defense Intelligence of the Taiwan authorities of China,30 June 1975,p.13.(in Chinese)In addition,several military conflicts between the naval and air forces of China and Vietnam(South Vietnam)marked the period from 10th to 20th January 1974.The U.S.embassy in Vietnam declared that the U.S.stood by a strict no-intervention policy.

To sum up,China’s SCS navigation was not for fishing and trading only.Evidence indicates that China’s historic rights are established through the long history,and consists of many different components of rights or titles,including sovereignty claims.

Ships are the most ordinary platforms for human activities at the sea.Thus we may easily find from the above cited materials that Chinese have been using vessels to engage their State activities in the SCS.Different from the exploration voyage of Columbus from Europe to the“New World”，Chinese sailed intensively for more than two thousand years,not only to realized their“discovery”of the islands,but also to carry out their daily“administration or management”acts for these islands and waters in the semi-enclosed,narrow water area between their mainland and their SCS islands.Admirable,China sailed that frequently in the region,but never created any colonies,and never hindered any foreigners’ free navigation.Comparing with the European people,when they arrived on their ships,they were so hungry for colonies and local resources.After the Second World War,colonization has been deserted in the ash of history.But the Chinese graceful and civilized historic rights are maintained,and should be maintained.

The Tribunal correctly indicated in its 12 July 2016 Award:

The term ‘historic rights’ is general in nature and can describe any rights that a state may possess that would not normally arise under the general rules of international law,absent particular historical circumstances.Historic rights may include sovereignty,but may equally include more limited rights,such as fishing rights or rights of access,that fall well short of a claim of sovereignty.65south China sea Arbitration,Award of 12 July 2016,p.96,para.225.

Also,the Tribunal correctly observed that“general international law ...does not provide for a single ‘régime’ for ‘historic waters’ or ‘historic bays’,but only for a particular régime for each of the concrete,recognised cases of ‘historic waters’ or‘historic bays’.”66Continental shelf (Tunisia/Libyan Arab Jamahiriya),Judgment,ICJ Reports 1982,p.18 at pp.73～74,para.100.south China sea Arbitration,Award of 12 July 2016,p.96,para.225.

The Tribunal noted that“China’s usage has not been entirely consistent,and that at least the English version of China’s Note Verbale of 6 July 2011 (of which only the English version is in the record before the Tribunal)refers to“waters of which China has historic titles including sovereign rights and jurisdiction.”67Note Verbale from the Embassy of the People’s Republic of China in Manila to the Department of Foreign Affairs,Republic of the Philippines,No.(11)PG-202 (6 July 2011)(Annex 202).south China sea Arbitration,Award of 12 July 2016,p.96,para.227.But,very unfortunately,the Tribunal mistakenly insisted that“[t]his instance is at odds with the vast majority of China’s statements,however,and the Tribunal considers that it more likely represents an error in translation or an instance of imprecise drafting,rather than a claim by China to sovereignty over the entirety of the South China Sea.”68south China sea Arbitration,Award of 12 July 2016,pp.96～97,para.227.At least two mistakes were made by the Tribunal in this short remarks:(1)It was not odd with the vast majority of China’s statements.The above cited materials can tell the Tribunal the truth;(2)It is a claim by China to sovereignty,but definitely not“over the entirety of the South China Sea”.China never claimed“all”the islands,or the“entire”SCS.Read the above cited history materials carefully to know the Tribunal’s intentional carelessness or ignorance.China has been misunderstood for years by many western scholars.The U-shaped,sectioned maritime boundary line proposed by the Chinese Government in 1947 is so clear and self-evidenced.The Tribunal obviously cannot read the Chinese history books and maps,nor listen to the Chinese explanations and consider matters with reasons.

Based on its ignorance and biased viewpoints,the Tribunal acknowledged that“historic rights may include sovereignty”,but denied the Chinese historical materials on this inclusion,pretending there were no such historic materials.The Tribunal realized that“general international law ...does not provide for a single‘régime’ for ‘historic waters’”,but it is of the view that China’s“historic water”in the SCS is only a fishing pond.69south China sea Arbitration,Award of 12 July 2016,pp.112～113,para.264.And the Chinese fishermen’s historical fishing rights are completely deprived by the new Convention.

Out of its ignorance and possible hatred to Chinese civilization,the Tribunal just wanted to jump into the conclusion that the“historic title”referred to in Article 298(1)(a)(i)means only the historical claims of sovereignty over maritime areas.And China claimed only fishery resources,never claimed any maritime sovereignty.If a document it luckily encountered did mention such sovereignty,it must be a translation mistake or imprecise drafting.Or,at least,it can be described as a ridiculous claim over the entire SCS.

Obviously,the Tribunal needs to read the historical materials plus the above mentioned in minutes of the Ninth National People’s Congress Standing Committee,so to realize that China constantly claims its historic rights or titles,not only over the fish resources but also the sovereignty in the water areas encompassed by its sectioned SCS U-shaped line.

C.Misinterpretation of China’s Hai-Jin (sea-Forbiddance)

The Philippines also notes that,for periods of the 14th century and for much of the 15th and 16th centuries,the Imperial Chinese Government actively prohibited maritime trade by Chinese subjects.70south China sea Arbitration,Award of 12 July 2016,pp.81～82,para.195;Merits Hearing Tr.(Day 1),p.81;Supplemental Written Submission,paras.A13.3～A13.11.The Tribunal quoted the Philippines submission as follows:

During the mid-15th century,for instance,the Ming authorities suppressed maritime activities,and in 1500 made it a capital offence to build two-masted ships.In 1525,all such remaining ships were ordered destroyed.In 1551,China defined venturing out to sea in a multi-masted ship to be an act of treason.71south China sea Arbitration,Award of 12 July 2016,pp.81～82,para.195.

The purpose of this paragraph quoted by the Tribunal was to mislead the readers that China stopped its historic rights by forbidding her people to sail in the Ocean.Thus the Tribunal and the Philippines were trying to imply that even China had any historic rights or titles,she has given them up during the 15th century when Ming Dynasty defined“venturing out to the sea in a multi-masted ship to be an act of treason.”

The serious mistake made here by the Tribunal is that the so-called“Hai-Jin”(Sea-Forbiddance),famous in the Chinese Ming Dynasty history,forbid only unauthorized civilian navigations,not all the ships and navigations.The purposes were mainly for defending the coastal areas against the frequent invading pirates from Japan and other States,including pirates from China itself.“Hai-Jin”was a reason for strengthening China’s national defense in the SCS,not a reason of derogating its historic rights or titles in the region.72Frederick W.Mote and Denis Twitchett eds.,The Ming Dynasty 1368-1644,Part 1,The Cambridge History of China,Vol.7,Cambridge:Cambridge University Press,1998,pp.490～504,615～619,695～699.More literatures on this subject written in Chinese may be found in:LIN Ruirong,Maritime Prohibition and Pirates During the Jiajing Period of Ming Dynasty,Historical Review,Vol.1,1997,pp.86～88;XUE Guozhong,The Negative Effect of Sea Ban in Ming Dynasty,Wuhan University Journal (Arts &Humanity),Vol.2,2005,pp.166～169;HUANG Zhongchen,The Sea Ban of Ming Dynasty,Journal of shandong University (Philosophy and social sciences),Vol.2,1987,pp.121～127.(in Chinese)One example of Ming Dynasty’s successful naval operations during the years of“Hai-Jin”was the story of WANG Zhi.WANG was a Chinese living in Japan and,for many years,he controlled thousands of Japanese pirates who invaded and robbed the Chinese coastal villages often.But eventually WANG was defeated by the Chinese navy and surrendered to the Ming Dynasty government.73LIN Ruirong,Maritime Prohibition and Pirates During the Jiajing Period of Ming Dynasty,Historical Review,Vol.1,1997,p.88.(in Chinese)

In terms of international maritime trade,contrary to the Philippines’ argument,some Chinese scholars discover:

It is personal trade rather than all foreign trade activities that were forbidden at the beginning of Ming Dynasty.After Ming Dynasty was founded,ZHU Yuanzhang immediately dispatched envoys to small countries in the sCs,asking them to submit to the new ruler and accepting the canonization of the new dynasty.As long as the enacted countries sent emissaries to express obedience and give tributes,they can conduct merchant activities with China.Gongbo refers to the official business between the foreign emissaries and the Chinese government.Furthermore,when giving tributes,the foreigners are allowed to do business with local merchants,which is called shibo.It is taxed and managed by the office of shibo.74WANG Shoujia,Study on Overseas Trade Policy in Ming Dynasty -on the Dispute Between Strengthening and Loosening the Policy of Hai-Jin,Historical Review,Vol.3,1986,p.42.(in Chinese)

The story of Ming Dynasty’s great navigator ZHENG He and his huge fleet,sailing seven times to East Africa all through the SCS,makes another prominent example of Ming Dynasty’s tight control over the maritime order in the SCS.

During Yongle’s reign,Emperor Chengzu was once in favor of positive politics regarding foreign trade.Although he emphasized on the ban on communicating with barbarians when he ascended the throne,he rebuilt three offices of shibo in the second year and loosened external limitation,which is the background of ZHENG He’s seven voyages to the West.75WANG Shoujia,Study on Overseas Trade Policy in Ming Dynasty -on the Dispute Between Strengthening and Loosening the Policy of Hai-Jin,Historical Review,Vol.3,1986,p.42.(in Chinese)

While the Chinese Navy’s operations were successful,the Ming Dynasty’s“Hai-Jin”was actually not very effectively implemented.The deputy in charge of shipping TAN lun has pointed out that it is a very far-sighted governmental policy that ships were not allowed to go to the sea in order to kill the harm in its cradle.But people on the coast still violated the ban,building ships privately,fishing and trading with foreign States for decades.Merchants traded with each other and foreign ships were full of seas.76WANG Shoujia,Study on Overseas Trade Policy in Ming Dynasty -on the Dispute Between Strengthening and Loosening the Policy of Hai-Jin,Historical Review,Vol.3,1986,pp.40～43,47～49;See also ZHENG Ruozeng,Chou Hai Tu Bian (Maps of Coastal Military Affairs),Vol.10,Jinglue (Outline)I.Beijing:Zhonghua Book Company,2007.(in Chinese)

All these literatures indicate clearly that for implementing“Hai-Jin,”Chinese government had to put a heavier hand on the SCS.Contrary to the Tribunal’s“imagination,”the Chinese patrolling by official navy ships became much more frequent in the SCS region during the so-called“Hai-Jin”years.This gives more,not less,supportive evidence of the Chinese Government’s State control over the SCS waters.ZHENG He’s far-sailing fleet,one of the most largest armada in the world at that time,and his seven voyages to the West are further convincing evidence that illustrate the Chinese government,through navy patrol,strengthened its sovereign control over the SCS and the costal national security,instead of giving up the administration.It means that China has undoubted historic rights or titles in the SCS.

It is also noteworthy that the Tribunal cited opinions submitted by the Philippines when making the conclusion,arguing that costal States were only allowed to claim rights to nearby waters at the time before the system of modern conventions on the sea was established:

According to the Philippines,international law prior to the adoption of the Convention did not accept“assertions of historic rights over such a vast area”as China now claims.77Merits Hearing Tr.(Day 1),p.59.Prior to the Convention,the Philippines argues,“[t]he sea was subject only to two principles:the principle of the freedom of the seas,which prohibits appropriation by any state;and the principle of control over a limited area by the immediately adjacent coastal state,which prohibits appropriation by any other state.78Merits Hearing Tr.(Day 1),p.61.

The“two principles”quoted by the Tribunal have never become international law.Additionally,the Tribunal obviously misunderstands the history,at least the history before European vessels entered the SCS in large amount.The Tribunal did not realize that China had built up a strong maritime defense force when the Ming Dynasty imposed sea bans.ZHENG He’s armada that sailed seven times to the West Africa tells the fact that the SCS controlled by Ming Dynasty is only a small sea area between China and its islets and reefs in Xisha and Nansha Islands.China has never claimed any historical rights to any remote or vast ocean,such as the Indian Ocean or the North Sea on the European continental shelf.The waters the Philippines believes“far remote from China’s mainland coast”is merely a“limited water area immediately adjacent to the Chinese coastal land”for the Chinese navy 600 years ago.

In short,the Tribunal seriously mis-interpreted the history of Ming Dynasty,or intentionally tried to mislead the readers that the 15th century“Sea Forbiddance”in Ming Dynasty could substantially derogate the Chinese historic rights or titles exercised by the Chinese government in the SCS.

D.Distortion on the History of Post-war Order Reconstruction

In its 12 July 2016 Award,paragraph 198,the Tribunal adopted the Philippines’argument,and intentionally betrayed the history of the Second World War.The Tribunal indicated:

According to the Philippines,the absence of any Chinese historic rights in the south China sea is also apparent in various historical documents obtained by the Tribunal from the Bibliothèque Nationale de France and the Archives Nationales d’Outre-Mer and provided to the Parties for comment.In the Philippines’ view,these documents confirm that“prior to the second World War France did not consider China to have made a claim in regard to any of the spratlys,or to the waters of the south China sea far removed from China’s mainland coast.79Responses of the Philippines to the Tribunal’s 26 May 2016 Request for Comments on Materials from the French Archives,para.30 (3 June 2016).Obviously a colonial European France’s attitude to the Far East Chinese island territories should never been regarded as decisive.The so-called Philippines’ argument that“prior to the Second World War France did not consider China to have made a claim in regard to any of the Spratlys,…”is not justifiable and really meaningless.

Additionally,“the post-war documents -including France’s internal records-make clear that France retained its claim to those features,”a position the Philippines considers consistent with its view that the United Kingdom and United States“wished to protect France’s sovereignty claim”in connection with the Cairo Declaration and Potsdam Proclamation.”80Responses of the Philippines to the Tribunal’s 26 May 2016 Request for Comments on Materials from the French Archives,3 June 2016,para.31.

That the Tribunal supports this standpoint essentially shows that some western scholars and politicians still hold Eurocentrism and wishful thinking that China is not the master of the Nanhai Islands.They“hope”Nanhai Islands should be in the charge of France,England,and even Germany,rather than the Chinese,who have lived in these islands for thousands of years and“hopefully”have just occupied these islands and reefs shortly after the Second World War.Surprisingly,the Tribunal tends to approve this kind of attitude.

But to their dismay,history shows the opposite.China not only has sovereignty over the islands and reefs in the SCS due to preoccupation,but also legally enjoys international historic rights of waters nearby these islands and reefs.Far from supporting the French colonialists to continue to control the islands and reefs in the SCS,the Second World War documents,such as the Cairo Declaration and the Potsdam Proclamation,stated the wish for decolonization after the World War II of all Allied States during the negotiations.In particular,the U.S.,the main leader of the war,put forward a totally different position compared that proposed by Great Britain or the empire where“the sun gradually sets”.President Roosevelt,who negotiated the terms of the Cairo Declaration with Churchill and Chiang kai-shek,discussed with Churchill aboard the Augusta vessel about whether colonialism should exist after the War.Roosevelt argued that colonialism belonged to the 18th century and was absolutely unfair for the people of the colonies,and the time was ripe to change such a situation.Realizing the transfer of leadership,the only thing Churchill could do was to shake his finger wildly and say:

I believe you are trying to do away with the British Empire.Every idea you entertain about the structure of the postwar world demonstrates it.But in spite of that,we know that you constitute our only hope.And you know that we know without America,the Empire won’t stand.81Elliot Roosevelt,As He saw It,New York:Duel Sloane &Pearce,1946,pp.36～42.

Stalin,the Soviet leader at the time,also made it clear that he opposed the return of Annam to France after the War.82FU Bingchang,the Chinese ambassador to Russia,told the Chinese government on 11th December 1943 that Stalin expressed his full agreement on the contents of the Cairo Declaration.Ambassador FU stated:Harriman secretly revealed that the Soviet Union also said that Annan should not be returned to France after the war.See The Archives of the Taiwan Authorities of China,The Log of the Cairo Conference,pp.159～160.As cited in LIANG Jingchun,Cairo Conference,4th edition,Taipei:Taiwan Commercial Press,1978,p.156.(in Chinese)

After the Second World War,the Allied States immediately promoted the establishment of the United Nations,taking anti-colonialism as a common mission of mankind,and set up the Trusteeship Council,which continuously motivated the activities concerning self-determination of the old colonies around the world.83On 1st January 1942,26 anti-fascist States,including the United States,Britain,China and the Soviet Union,signed the Declaration by United Nations and jointly advocated the establishment of a new international organization.In 1945,right after the war,the United States,Britain,China,the Soviet Union and France officially launched and invited the signatories of the Declaration by United Nations to participate in the United Nations Constitutional Convention,which was grandly held in San Francisco,USA on 25 February 1945.280 delegates and about 1,700 consultants,experts and journalists from more than 50 countries gathered together.The Chinese delegation consists of 10 people,including the Chinese representative DONG Biwu.The meeting was based on the recommendations of the Dumbarton Oaks Conference.After more than two months of discussions,the UN Charter was drafted.On 25 June,the delegates unanimously adopted this charter at the San Francisco Opera House.On the 26th,the Constitutional Convention held the final agenda in the auditorium of the Veterans Memorial in San Francisco -the delegates signed the charter.In accordance with the procedures agreed by the General Assembly,the Chinese delegation signed the first one.At noon,DONG Biwu signed his name on the charter with a writing brush.Representatives of all countries signed this charter,and Poland later added.The 51 countries that signed the charter became the founding members of the United Nations.On 24 October,most signatories such as the United States,Britain,China,the Soviet Union and France submitted their instruments of ratification.The charter came into effect and the United Nations officially proclaimed its establishment.According to the Charter,the purpose of the United Nations is to“maintain international peace and security”and“develop friendly relations based on the principle of respecting the people’s equal rights and self-determination”and“to carry out international cooperation.”The elimination of decolonization has become the unanimous desire of all countries in the world.(in Chinese)

The agreement reached between Chiang Kai-shek and the leaders of Britain and the U.S.at the Cairo Conference in 1943 states that:(A)North Korea ought to gain independence in due time;(B)Vietnam will be independent,and will not be ruled by France;(C)Ryukyu will be administrated temporarily by China and the U.S.Yet,apart from that of the North Korea,promises about the independence of Vietnam and Ryukyu were not fulfilled,leading to the Vietnam War and Ryukyu issues later.Every State could learn lessons from this.84LIANG Jingchun,Cairo Conference,4th edition,Taipei:Taiwan Commercial Press,1978,pp.157～159.(in Chinese)

In fact,at that time the French government was weak and in exile.The socalled statement that“the United Kingdom and the United States wished to protect France’s sovereignty claim”was an expectation from the Allies (including China).They hoped an independent France could be rebuilt after the War,rather than to support France’s colonial rights in Vietnam.If there were any ideas of supporting colonialism,those probably just reflected personal views of Churchill.The system of the United Nations formed by the Allies insisted on decolonization,though the U.S.and Britain had divergent opinions about colonial problems at the end of the War World II.However,abolishing the 18th—century-style colonialism,assisting non-self-governing people to obtain self-determination rights,and creating equal and free international trade institutions were widely accepted as global regimes.For those who are still dreaming about colonialism,they should have a clear awareness regarding the international law’s history and abandon the desire that stands opposite to the humankind.

It is also notable that the United Kingdom and the United States had different opinions on how to handle the“China-Burma-India”(CBI)theater based on their own interests and did not fully discuss this issue with the Chinese leaders.85In fact,at the time of the Cairo meeting,China had been fighting against Japan for six years,and the Anglo-American strategy for Japan had not yet reached an agreement.Before and after the Second World War,the CBI theater was influenced by the US’s“Europe First”policy.According to the Marshall Report,China leased the least amount of materials,accounting for only 5 percent of all the US’s foreign leased materials,which was often appropriated elsewhere.The commander of Allied forces in the CBI theater failed to participate in the discussion of Japan’s strategy.Churchill was only trying to maintain the colonial interests of the British Empire in the Far East.Goods delivered by the Chinese army to Yangon were snatched by the British.The Chinese army and the British army jointly fought in Pingmanna,with the Chinese army taking the lead.The British army was responsible for the right wing,but quietly retreated when the fighting was most intense,causing heavy losses to the Chinese army.During the battle in Yenangyaung,the Chinese army rescued more than 7,000 British soldiers,resulting in,because of mobilizing a brigade,the front line being used by the enemy and defeated.The United States and Britain rarely mention the sacrifices of China during the war,maybe because they feel guilty.See LIANG Jingchun,Cairo Conference,4th edition,Taipei:Taiwan Commercial Press,1978,pp.12～14.History of the sino-Japanese War,p.249,the National Archives,Expeditionary Forces Coming into Burma,Vol.1,pp.4～5.As cited in LIANG Jingchun,Cairo Conference,4th edition,Taipei:Taiwan Commercial Press,1978,p.33.(in Chinese)According to the report on the study of the history of the U.S.army,it is believed that at the end of the World War II,in the Cairo and Tehran meetings,the inconsistency between British and the U.S.on the CBI theater influenced the situation in the Far East after the War.86Strategic Planning for Coalition Warfare 1943-44,Appendix B.As cited in:LIANG Jingchun,Cairo Conference,4th edition,Taipei:Taiwan Commercial Press,1978,p.40.(in Chinese)This historical factor has so far caused a disorder of international legal positions in the Far East,such as the legal status of Ryukyu,disputes over the Diaoyu Islands,and sovereignty disputes in the SCS.It has had long-term adverse effects on regional peace and stability.These historical facts are particularly worthwhile of the States that were once colonized by Western States in the SCS (including China,Vietnam,and the Philippines)in East Asia.

III.The Hasty Argument on China’s Historic Rights in the SCS

A.The Tribunal seriously Violates the Legal Obligation of the Convention,Claiming China’s statement in Response to the Award on ‘‘Jurisdiction and Admissibility’’ Rendered by the Tribunal as the“Most Insightful Formulation”of China’s Claims to the sCs

Before the Tribunal introduced considerations for its award,it claimed that“China has not explained the nature of these claims in the course of these proceedings.The Tribunal will address the nature of China’s claims to historic rights in the context of considering its jurisdiction with respect to the Philippines’Submissions No.1 and 2.”87south China sea Arbitration,Award of 12 July 2016,p.84,para.201.Also the Tribunal made the following comments,acknowledging the difficulty in understanding:

Whether the Parties’ dispute involves historic titles,therefore,depends first upon the nature of China’s claims in the south China sea and,second,on the scope of the exception.It is for China to determine the scope of its maritime claims.As far as the Tribunal is aware,however,the most insightful formulation by China of its claims in the south China sea,beyond its claim to sovereignty over islands and their adjacent waters,is as a claim to“relevant rights in the south China sea,formed in the long historical course.”88Statement of the Ministry of Foreign Affairs of the People’s Republic of China on the Award on Jurisdiction and Admissibility of the South China Sea Arbitration by the Arbitral Tribunal Established at the Request of the Republic of the Philippines,Ministry of Foreign Affairs,People’s Republic of China,30 October 2015,Annex 649.In the absence of a more specific indication from China itself,it necessarily falls to the Tribunal to ascertain,on the basis of conduct,whether China’s claim amounts to“historic title”.89south China sea Arbitration,Award of 12 July 2016,p.86,para.206.

It’s worth noting that Tribunal’s so-called ‘‘the most insightful formulation by China of its claims in the South China Sea’’ is just some points which the Tribunal abstracted from the statement of the Ministry of Foreign Affairs of the People’s Republic of China on jurisdiction and admissibility of the SCS arbitration.In other words,this document has nothing to do with the substance of Submissions No.1 and 2.

China has countless documents about its historic titles and rights in the SCS.The Tribunal may not be able to read Chinese,and failed to hire enough interpreters to help them accomplish their duty.It is no wonder that the Tribunal could not find a better formulation about China’s claim in the SCS.The Tribunal’s malpractice is astonishing and unacceptable.

The key issue here is that China is not obliged to voluntarily offer any“significant”materials to the Arbitration Tribunal,while the jurisdiction is illegally construed by the other party and the“veil of a forged cause of action”is not pierced by the malicious Tribunal.On the other hand,the Tribunal is obliged to find out the whole and the only fact involved in the case.According to the provision of The Convention Annex VII Article 9:

If one of the parties to the dispute does not appear before the Tribunal or fails to defend its case,the other party may request the Tribunal to continue the proceedings and to make its award.Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings.Before making its award,the Tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law.90The Convention,Annex VII (Arbitration),Art.9 (Default of appearance).

As criticized above,the Tribunal has obviously ignored its duty and eventually failed to find out the necessary materials to ensure the Philippines’ claim is“well founded in fact and law.”

B.The Tribunal Admits Its Award Lacking Evidence,Conceals Facts,and Determines China’s Rights in the south China sea Being Fishing Rights Only

When the Tribunal made its conclusion,sometimes they used“appear,”“appears to be”or other words to indicate the conclusion is uncertain.For example,when discussed China’s historical fishing rights,the Tribunal said:“In practice,to establish the exclusive historic right to living and non-living resources within the ‘nine-dash line’,which China now ‘appears’ to claim,it would be necessary to show that ….”91south China sea Arbitration,Award of 12 July 2016,p.114,para.270Summarizing China has no historic rights to living resources in the exclusive economic zone and other waters,the Tribunal said:

The notion of sovereign rights over living and non-living resources is generally incompatible with another state having historic rights to the same resources,in particular if such historic rights are considered exclusive,as China’s claim to historic rights“appears to be”.92south China sea Arbitration,Award of 12 July 2016,p.102,para.243

Regarding the Tribunal’s hesitant opinion above,we shall make following responses:firstly,the historic rights over living resources claimed by China in the SCS have never been proclaimed as exclusive.Secondly,the Convention has never been intended a“merger rule”.It is just misleading to insist that once China accessed to the Convention,there will be no rights or titles remained for China to claim in the Philippines’ EEZ.Other than Article 56 (Rights,jurisdiction and duties of the coastal state in the exclusive economic zone)paragraph 2 of the Convention which provides that“[i]n exercising its rights and performing its duties under this Convention in the exclusive economic zone,the coastal state shall have due regard to the ‘rights and duties’ of other States,”the Convention also provides clearly in Article 51 (Existing agreements,traditional fishing rights and existing submarine cables)that an archipelagic State (like the Philippines)“shall recognize‘traditional fishing rights’ and other legitimate activities of the immediately adjacent neighboring States [like China]in certain areas falling within archipelagic waters.”93The Convention,Art.51(a)(Existing agreements,traditional fishing rights and existing submarine cables)provides:“Without prejudice to article 49,an archipelagic State shall respect existing agreements with other States and shall recognize traditional fishing rights and other legitimate activities of the immediately adjacent neighbouring States in certain areas falling within archipelagic waters.The terms and conditions for the exercise of such rights and activities,including the nature,the extent and the areas to which they apply,shall,at the request of any of the States concerned,be regulated by bilateral agreements between them.Such rights shall not be transferred to or shared with third States or their nationals.”

Please imagine that while China could have“traditional fishing rights”and“other legitimate activities”within the Philippines’ archipelagic water where“sovereignty”is enjoyed by the Philippines,how could China have no“historic fishing rights”or“other legitimate titles”to the natural resources in the EEZ of the Philippines where only“sovereign rights”are preserved by the Convention? The failure of the Tribunal’s reasoning cannot be clearer.

C.The Tribunal Attempts to Mislead the Reader Through the Article of Reservation in the Convention,Erroneously Determining that China’s Claims supersede the Convention Widely

The Tribunal is very arbitrary.In paragraph 254 of the Award,the Tribunal claimed:

On this issue [of reservation],the Tribunal notes that China and other states were opposed to a complete ban on reservations94south China sea Arbitration,Award of 12 July 2016,p.107,para.254.See summary Records of Plenary Meetings,135th Plenary Meeting,UN Doc.A/CONF.62/SR.135,paras.52～53 (25 August 1980),Official Records of the Third United Nations Conference on the Law of the sea,Volume XIV (summary Records,Plenary,General Committee,First and Third Committees,as well as Documents of the Conference,Resumed Ninth session),pp.23～24;“summary Records of Plenary Meetings,161st Plenary Meeting,”UN Doc.A/CONF.62/SR.161 at para.30 (31 March 1982),Official Records of the Third United Nations Conference on the Law of the sea,Volume XVI (summary Records,Plenary,First and second Committees,as well as Documents of the Conference,Eleventh session),p.32.and that the final approach in the Convention represents a compromise:certain permissible reservations are set out in the text of the Convention while any other reservation is prohibited.Thus China was entitled to,and did,activate the reservations to compulsory dispute settlement in Article 298 -that the Tribunal has already determined do not apply to the present dispute -but is not entitled to except itself from the system of compulsory settlement generally.95south China sea Arbitration,Award of 12 July 2016,p.107,para.254.See Award on Jurisdiction,para.107.

By far,the statement of the Tribunal is logical,though the Tribunal has vilified China in detail.Then it surprisingly gave a self-righteous conclusion,declaring:

In the Tribunal’s view,the prohibition on reservations is informative of the Convention’s approach to historic rights.It is simply inconceivable that

the drafters of the Convention could have gone to such lengths to forge a consensus text and to prohibit any but a few express reservations while,at the same time,anticipating that the resulting Convention would be subordinate to broad claims of historic rights.96south China sea Arbitration,Award of 12 July 2016,p.107,para.254.See Award on Jurisdiction,para.107.

Firstly,the Tribunal tried to vilify China when it said that“[o]n this issue of reservation,the Tribunal notes that China and other States were opposed to a complete ban on reservations and that the final approach in the Convention represents a compromise…”The reality was that simple:Participating States had different opinions on issues of reservation in the Convention III,but eventually they compromised.

Secondly,the Tribunal tried to mislead again,when it stated that the“Convention would be subordinate to broad claims of historic rights”.The Chinese claims of historic rights were not broad at all.It did not claims the many rights a State could enjoy in the contemporarily defined internal water.It did not claim territorial sea rights either.It only claims whatever the historical practice can legitimately give it toward the administration of the narrow sea area before its coastal land.It is not broad at all.

What did the Tribunal really mean by using the phrase“‘broad’ claims of historic rights”? If that would also mean claims by many other States following the“bad”precedent of China,then we have to ask:are there many States in the world which enjoy over two-thousand years experience of ocean navigation and hundreds of years historic sovereignty in a semi-enclosed sea adjacent to their coasts? How many of them have claimed historic rights or titles to the islands and waters next to their doorsteps?

From where did the Tribunal establish its conclusion that“broad claims of historic rights”exist,and the Convention text reached through difficult international negotiation will become subordinate to them? Or,from the other side of the logic,will China be applying“historic rights”and stupidly forget its Convention statutory rights in the SCS?

Overlapping claims of rights or interests are common in the international community.The Convention and other bodies of international law have created many ways and means to settle these disputes.There is simply no reason to worry,if States would honour the Convention and other international norms.In its Award,however,the Tribunal tended to insist its worry about which would“supersede”which,and which is“subordinate”to which,trying to create for itself an image of“protector”or“preserver”of the Convention.Yet,the world is not divided into black and white only.After reviewing the special historical and geographical factors in the SCS,we may easily find that the 1951 Fisheries Case (UK v.Norway)has offered applicable legal principles for the Tribunal to use,if it is willing to use.97Fisheries Case (United Kingdom v.Norway),Judgment,ICJ Reports 1951.See also Aldo Chircop,Gidel’s Safety Valve:The Anglo-Norwegian Case,1951 and the Doctrine of History Waters Revisited,Public International Law Colloqium on Maritime Disputes settlement,Hong Kong:Chinese Society of International Law and Hong Kong International Arbitration Centre,2016,p.340.And,based on its political philosophy of co-existence,in this case of Chinese historic rights in the SCS,China has not claimed anything that is to“supersede”the beloved Convention.And safely,the Convention will not“subordinate”to the Chinese historic rights in the region.As we have noticed,the historic rights are duly regarded and honoured by the Convention,and the two are not negating each other in any way.

D.The Tribunal Repeatedly and Deliberately Demonizes China

The biased Tribunal also attempted to use some ambiguous and obscure language to vilify China in its Award.As mentioned above,China submitted two notes to the United Nations on May 7,2009,and this was not the beginning of China’s claim to historic rights and the U-shaped sectioned line,but a reaction to Vietnam and Malaysia’s application of determining the outer limits of the their continental shelf in the SCS.The Philippines tried to pretend that it did not know the historic water claims made by China before that specific date.The bigoted Tribunal did not want to find out the truth of history,but,on the contrary,chose to quote the Philippines argument:“[W]hen China did make clear in May 2009 that it claims historic rights in the maritime areas within the ‘nine-dash-line’,this was promptly objected by the ‘other littoral States’ of the SCS.”98south China sea Arbitration,Award of 12 July 2016,p.83,para.199;and Merits Hearing Tr.(Day 2),p.11.This misleading wording of“other littoral States”was intended to make people believe that not only the Philippines that did not know the Chinese claim,but also all the other SCS littoral States that did not know about it;and China had thus become a public enemy in the world.

In another case,the Tribunal attempted to describe China as a member of a rogue group opposed to the Convention.The Tribunal simply wrote:“On this issue [of reservation],the Tribunal notes that China and other States were opposed to a complete ban on reservations and that the final approach in the Convention represents a compromise…”99south China sea Arbitration,Award of 12 July 2016,pp.107～108,para.254.Actually the fact is very simple:more than 100 States in the conference,they had disagreement on the question of reservation.But they all reach the agreement peacefully in the end.If we can remind the Tribunal,please note that in the third session of the United Nations conference on the law of sea,a necessary reservation was included in article 298 of the Convention.According to this article,the Tribunal does not have jurisdiction over the dispute,such as this case.

The Tribunal falsely incriminated China,blaming China as utilizing its historic rights to“supersede”or to“negate”other States’ EEZ rights,taking even the newly developed seabed oil drilling activity as part of its“historic”rights,bullying the Philippines and“of other littoral States to the SCS.”100south China sea Arbitration,Award of 12 July 2016,pp.109～110,para.258.Please read the following to know how,and perhaps why,these arbitrators were appointed to do their job in this Tribunal.

When the Tribunal was discussing the decision of the International Court of Justice in the Fisheries Jurisdiction Cases,101Fisheries Jurisdiction (United Kingdom v.Iceland),Merits,Judgment,ICJ Reports 1974,p.3;Fisheries Jurisdiction (Federal Republic of Germany v.Iceland),Merits,Judgment,ICJ Reports 1974,p.175.it abruptly said that,

As an initial matter,the Tribunal notes that the applicants in Fisheries Jurisdiction [Cases],the United Kingdom and the Federal Republic of Germany,never asserted that their historical fishing [“]superseded[”]Iceland’s declaration of a fisheries zone,but merely claimed a right of access.This thus differs fundamentally from the present proceedings,where the Tribunal understands China to consider that its claimed historic rights to living and non-living resources effectively [“]negate[”]the exclusive economic zone rights of [“]other littoral states[”]to the south China sea.102south China sea Arbitration,Award of 12 July 2016,pp.109～110,para.258.

The whole fact was distorted.Because,just like the UK and Germany in Fisheries Jurisdiction Cases,China never asserted that its historical rights would“supersede”the Philippines EEZ fishing right.The Tribunal praised UK and Germany for“merely claiming a ‘right of access’ [for fishing? or what?]”to the Iceland’s fisheries zone,without knowing the real practice of China in the previous centuries to have allowed the Philippine fishermen fishing in the Chinese SCS historic waters.The incident of (Chinese territory)Huang-Yan Dao (or Scarborough Shoal)was not an incident for China to“supersede”the Philippines’ EEZ fishing right,but a case of legitimate retaliation against the Philippines,after the latter’s navy arrested Chinese fishermen,who have been fishing for generations at Huang-Yan Dao,and tortured them on board of their naval ship.103Chinese fishermen recall clash with Philippine Navy,at http://www.chinadaily.com.cn/world/2012-04/18/content_15079192.htm,4 January 2018.Chinese Embassy Urges the Philippines to Stop Illegal Activities in China’s Territory,at http://news.xinhuanet.com/english/china/2012-04/11/c_131519892.htm,4 January 2018.(in Chinese)According to the Position Paper,the Philippines launched a provocation in the waters near Huangyan Island on April 10,2012,“using warships to arrest Chinese fishing boats and fishermen”,see Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the south China sea Arbitration Initiated by the Republic of the Philippines(7 December 2014),para.48.This is also the reason why China quietly re-allowed the Philippines fishermen return to the Huang-Yan Dao waters,after the friendly visit paid by President Ordrigo Duterte to Beijing in October 2016.Indeed,China never indicated with words or deeds that its historic rights would“negate”the EEZ rights of any littoral States of the SCS community.If,somehow,there would be overlapping claims of rights or interests,we are ready to have friendly negotiations with our SCS neighbors.

Let us repeat this.Rights of various States might overlap.Fair and equitable solutions should be sought for through peaceful ways.And the Convention has already created a reasonable scheme of maritime disputes settlement,including the limited reservation scheme provided for in Article 298.China insists on honest application of the Convention scheme for the SCS disputes.

What was even more absurd and inconceivable was that the“Eurocentric”Tribunal continued to write in its Award the following:“Notwithstanding this difference,the Tribunal also considers the reasoning exhibited in Fisheries Jurisdiction [Cases]to be inapplicable under the present law of the sea.”104south China sea Arbitration,Award of 12 July 2016,p.110,para.258.

In short,in a paragraph introducing a precedent,which was regarded by the Tribunal as not applicable to the present case,the Tribunal,out from no reasons,tried to beautify the European States of UK and Germany,and to defame the Far East ancient civilization of China.A Tribunal biased like this cannot be expected to be fair and equitable.

E.The Tribunal Recognizes the Inclusive Flexibility of Historic Rights,but Unreasonably Determines that China’s Rights supersede the Convention and Deliberately Waives Favorable Evidence on the Pretext of No Jurisdiction,Evading Article 56(2)of the Convention When Referring to the same Article 12 Times in Its Award

The Tribunal also repeatedly adopted the Philippines’ arguments that“any rights that China may have had in the maritime areas of the SCS beyond those provided for in the Convention were extinguished by China’s accession to the Convention”105south China sea Arbitration,Award of 12 July 2016,p.74,para.188.and that“even if China did possess historic rights in the SCS,any such rights were extinguished by the adoption of the Convention.”106south China sea Arbitration,Award of 12 July 2016,p.80,para.192.The Tribunal itself also stated that“[t]he Tribunal has held,in the preceding Section,that the entry into force of the Convention had the effect of superseding any claim by China to historic rights to the living and non-living resources within the ‘nine-dash line’….”107south China sea Arbitration,Award of 12 July 2016,p.112,para.263.Later on,the Tribunal claimed that“[t]he Tribunal considers that,in ratifying the Convention,China has,in fact,relinquished far less in terms of its claim to historic rights than the foregoing conclusion might initially suggest.”108south China sea Arbitration,Award of 12 July 2016,p.112,para.263.Eventually,the Tribunal brought out another conclusion,emphasizing that“[i]n any event,any such right would have been superseded by the adoption of the Convention and the legal creation of the exclusive economic zone.”109south China sea Arbitration,Award of 12 July 2016,p.256,para.631.

Out of its ignorance of Chinese history,the Tribunal concluded holistically that China’s historic rights in the SCS consists only the right of fishing,based on the Chinese constant navigation in the region.And this right of fishing has been merged in the concept of today’s EEZ provided for in the Convention that China already ratified.

The most important statement made by the Tribunal on the terms of“historic rights”,“historic titles”and“historic waters”is mainly based on the UN Secretariat’s 1962 Memorandum on the Juridical Regime of Historic Waters,Including Historic Bays,and the two judgements made by the International Court of Justice in Maritime Delimitation and Territorial Questions (Qatar v.Bahrain)and the Continental Shelf (Tunisia v.Libyan Arab Jamahiriya).110south China sea Arbitration,Award of 12 July 2016,p.95,para.224.

The Tribunal correctly summarized these remarks made by those publicists and described that:

The purpose of this extended recitation is to emphasize that there exists,within the context of the law of the sea,a cognizable usage among the various terms for rights deriving from historical processes.The term“historic rights”is general in nature and can describe any rights that a state may possess that would not normally arise under the general rules of international law,absent particular historical circumstances.Historic rights may include sovereignty,but may equally include more limited rights,such as fishing rights or rights of access,that fall well short of a claim of sovereignty.“Historic title”,in contrast,is used specifically to refer to historic sovereignty to land or maritime areas.“Historic waters”is simply a term for historic title over maritime areas,typically exercised either as a claim to internal waters or as a claim to the territorial sea,although“general international law… does not provide for a single“régime”for“historic waters”or“historic bays”,but only for a particular régime for each of the concrete,recognized cases of“historic waters”or“historic bays”.Finally,a“historic bay”is simply a bay in which a state claims historic waters.111south China sea Arbitration,Award of 12 July 2016,p.96,para.225.

Yet,unfortunately,after the correct summarization,the Tribunal still chose to betray the tracks of reasoning on historical facts,and made unreasonable Award on its own.

For example,according to the above paragraph,when the Tribunal explained the nature of“historic rights”,it indicated that“[t]he term of ‘historic rights’ is general in nature and can describe any rights that a State may possess that would not normally arise under the general rules of international law,absent particular historical circumstances.”And it also insisted that“[h]istoric rights may include sovereignty,but may equally include more limited rights,such as fishing rights or rights of access,that fall well short of a claim of sovereignty.”

But,the Tribunal declared that“[b]ecause the Tribunal is not addressing questions of sovereignty,evidence concerning either Party’s historical use of the islands of the SCS is of no interest with respect to the formation of historic rights,…”112south China sea Arbitration,Award of 12 July 2016,p.113,para.267.Thus,it pretended to have justifiably discarded the duty of reviewing the mountainous Chinese history materials.These materials,as we sampled previously,are not only“concerning…historical use of the islands of the SCS”,but also deeply concerning the SCS waters.

In short,in its reasoning,the Tribunal rejected to research the thousandsyear history of China and arbitrarily limited China’s sovereign rights,jurisdiction and“historic rights”to the rights to living and non-living resources,as claimed by the Philippines.It not only falsely determined China’s“historic rights”“violated”relevant rules of EEZ in Convention,but also further willfully expanded the scope in its conclusion,denying China’s“any”historic rights or other sovereign rights or jurisdiction and so on.113south China sea Arbitration,Award of 12 July 2016,p.117,para.278.

In order to achieve its goal,of course,the Tribunal needs to interpret Article 56 of the Convention.It is,however,extremely interesting and ironic that,in this Award,mentioning Article 56 twelve times,the Tribunal tried hard to avoid paragraph 2 of Article 56.In paragraph 240 of the Award,the Tribunal mentioned the text of Article 56 for the first time and the“only time”,but intentionally omitted paragraph 2.When the Tribunal mentioned Article 58 (Rights and duties of other States in the exclusive economic zone),it cited the complete text of that article which includes the provision of“States shall have due regard to the rights and duties of the coastal State…”Yet,when it mentioned Article 56 (Rights,jurisdiction and duties of the coastal State in the exclusive economic zone),the Tribunal intentionally cited the first paragraph and omitted the second,which provides that“the coastal State shall have due regard to the rights and duties of other States…”The provision is so clear that other countries have other“rights and duties”in the coastal State’s EEZ.Obviously the Tribunal did not want people to know the provision of this paragraph.In the above-mentioned 12 times of referring to Article 56 of the Convention,the Tribunal mentioned the Article 56 paragraph 2 in the paragraph 742 of its Award,which was the only time.In this occasion,the Tribunal only cited the Chagos Marine Protected Area Arbitration case;as to the explanation of“due regard”,it evaded the fact that other States do enjoy other“rights and obligation”in the EEZ of costal states.The Tribunal did its best to avoid the basic rule that“other States also enjoy other rights in the exclusive economic zone of coastal States”.

This act of avoiding the true meaning of the Convention reveals the Tribunal’s dishonesty and ridiculous endeavor to deceive the public.Reading the text of paragraphs 251&252 of the Award,114south China sea Arbitration,Award of 12 July 2016,pp.105～106,paras.251～252.one can easily find that the Tribunal took the attitude of political fights and defamation,instead of quasi-judicial act of independence and justice.

Shirking the basis of history,the framework of common-sense geography,and the attitude of fairness,the Tribunal arbitrarily made the following absurd conclusion:

The Tribunal has already held (see paragraphs 277 to 278 above)that there is no legal basis for any Chinese historic rights,or sovereign rights and jurisdiction beyond those provided for in the Convention,in the waters of the south China sea encompassed by the“nine-dash line”.The Tribunal sees no evidence that,prior to the Convention,China ever established a historic right to the exclusive use of the living and non-living resources of the waters of the south China sea,whatever use it may historically have made of the spratly Islands themselves.In any event,any such right would have been superseded by the adoption of the Convention and the legal creation of the exclusive economic zone.115south China sea Arbitration,Award of 12 July 2016,pp.255～256,para.631.

IV.The Tribunal’s Absurd“Mosquito Logic”and Its Serious Damage to the International Rule of Law

The logic the Tribunal used in demonstrating the Philippine’s claim in Submissions No.1 and 2 is funny but problematic.In its unconceivable conclusion,the Tribunal stated that the Convention“superseded”“any”historic rights or other sovereign rights or jurisdiction“in excess of the limits imposed therein.”116south China sea Arbitration,Award of 12 July 2016,p.117,para.278.Such a conclusion is just an empty statement:if the Convention has limits,it has limits and cannot be exceeded.It’s a perfectly logical and empty statement.

Indeed,in the course of its deliberation,the Tribunal mentioned the substantive answers of the above substantive question.But the underlying logic of the answers is more interesting and more absurd.

We all know that:“all flying objects”includes“artificial and natural flying objects”.We also know that:“all China’s historic rights in the SCS”includes“sovereignty and many non-sovereignty historic rights”.But the Tribunal pretended it does not know.The Tribunal’s trick is:it first defined“all flying objects”(“all China’s historic rights in the SCS”)as“mosquito”(fishing rights);then they decided“mosquito”(fishing rights)is“harmful to human”(“violation of EEZ rules of the Convention);finally they used“pesticide”(“arbitration award”)to eliminate“mosquito”(“fishing rights”)and thus to eliminate“all flying objects”(“all China’s historic rights in SCS”).

Does the Tribunal really think,after 12 July 2016,they have successfully eliminated“mosquito”,“all flying objects”,or“all China’s historic rights in SCS”?Thus,does the mosquito extinct? And does China no longer have any sovereignty or non-sovereignty historic rights in the SCS? The trick of its deduction shows that the Tribunal ignores the truth of history,distorts the positive law,and“supersedes”the legal principle of international community.

To be straightforward,the worst mistake that the Tribunal has committed in its bigoted Award is not really any remissness,laziness or misconducts,but its destructing the international rule of law by intentionally ignoring the fact of the Philippines’ invading and occupying the Chinese Nansha Islands territory.

Since the 1970s,the Philippines has occupied Chinese Nansha Islands territory many times,violating the Charter of the United Nations and basic international principle.In 1999,what is more,the Philippines pretended to strike a rock at Ayungin Reef,and promised to drag it out again and again;after 17 years it claimed that its original intention is to cheat and occupy the island.The Tribunal not only ignores the fact that the Philippines invaded and occupied Chinese Nansha Islands territory with deception in a flagrant way,but also chooses to support its despicable statements and to consolidate its so-called compulsory jurisdiction.The Tribunal pretended to play the role of fair arbitrators.This kind of forcible denial of China’s legal historic rights is actually an abuse of quasi-judicial procedures,which seriously undermines the international community’s confidence in quasi-judicature and hinders humankind’s pursuit of the rule of international law.

“International law is not static.”117south China sea Arbitration,Award of 12 July 2016,p.116,para.274.It is evolving constantly.As the Tribunal correctly indicated:

At the time Iceland declared its 50-nautical-mile zone in July 1972,the extension of national jurisdiction over maritime areas beyond the territorial sea was still a hotly contested issue.As the Court read the state of customary law then prevailing,it permitted an exclusive fishing zone of only 12 nautical miles and preferential rights in an undefined area beyond that limit.Only a few short years later,however,the processes at work in the Third UN Conference(described above at paragraph 249 to 252)crystallised into the consensus in favour of the exclusive economic zone.The law applied in Gulf of Maine and recorded in the Convention thus differed materially from that considered by the Court in Fisheries Jurisdiction.118south China sea Arbitration,Award of 12 July 2016,p.110,para.258.

Such statements of the Tribunal only emphasized the ending of legal evolving and intentionally neglected the beginning.It,nevertheless,points out the truth that,though there is no specific provision of law,historic rights or historic waters based on special historical evidence and special geographical conditions have always been respected and allowed to exist in the international community.The story of two Presidential Proclamations issued by the President of the U.S.Truman in 1945 is the case in point.So is the case of Norway violating the straight baseline method of international law in 1951.The same is true with China’s claims of historic rights within the U-Shaped sectioned Line in the SCS proclaimed since 1947!