By Dr. Hon. Lee Hoey Simon
Beyond jurisdictional and procedural flaws, the South China Sea Arbitral Tribunal also rendered a distorted interpretation of Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS) and disregarded the integral nature of the Nansha Islands as a whole. These errors in fact-finding and substantive law rendered the award legally flawed and fundamentally erroneous.
Distortion of Article 121 of UNCLOS
The core fallacy of the Tribunal's substantive award lies in its interpretation and application of Article 121 of UNCLOS (the regime of islands). Article 121(3) provides: "Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf." This involves a critical judicial determination: how to define "rocks" versus "islands", which directly determines the existence and scope of relevant maritime entitlements.
The Tribunal conducted a piecemeal review of all features in the Nansha Islands that are above water at high tide, concluding that all of them constitute "rocks which cannot sustain human habitation or economic life of their own," and accordingly ruled that no feature in the Nansha Islands can generate an exclusive economic zone or continental shelf.
The most absurd example of this determination is the treatment of Taiping Island (Itu Aba). Taiping Island is the largest natural island in the Nansha Islands, covering approximately 500,000 square meters, possessing fresh water resources and arable land, and having been inhabited and sustained by human life for an extended period. The crux of the controversy surrounding Taiping Island lies in the Tribunal's adoption of an exceptionally stringent and highly contested interpretation, whereby it classified an island with conditions capable of sustaining human habitation and independent economic life as a "rock," thereby denying Taiping Island's status as an island. The Tribunal set forth criteria requiring "settlement of a stable human community" and stipulated that economic activities must not be "purely extractive." The Tribunal opined that personnel stationed on Taiping Island relied on external supplies and that historical utilization by fishermen was intermittent, thus not constituting stable settlement.
However, this clearly disregards the objective conditions on Taiping Island, including the presence of fresh water and soil, as well as the historical fact that Chinese fishermen resided, cultivated crops, and raised livestock there over extended periods, fully satisfying the objective conditions for sustaining human life and economic activity. If the standards adopted by the South China Sea Arbitral Tribunal were to be accepted, many features currently recognized by international law as "islands" would also be reclassified as "rocks." Examples include Midway Atoll, Wake Island, and Jarvis Island of the US, all of which are similarly limited in area and reliant on external support.
Another example is Okinotorishima in Japan, which Japan claims as an "island" and has used to delineate an exclusive economic zone, despite its natural conditions being far inferior to those of Taiping Island. Article 121(3) of UNCLOS has long been controversial and is widely considered to be laden with subjectivity and uncertainty. The Tribunal exploited precisely this ambiguity, disregarding existing international law and the global maritime order, to engage in unrestrained interpretation. This not only sets a perilous precedent of arbitrarily rewriting the legal status of maritime features under the guise of legal interpretation, severely disrupting global maritime order and stability, but also fully exposes the "double standards" applied to the claims of different States.
Dismembering integral nature of Nansha Islands
Another major fallacy of the Tribunal lies in its disregard for the fundamental fact that the Nansha Islands constitute a single whole geographically, historically, and legally. As an integral archipelago, the Nansha Islands feature close geographical and historical interconnections among their component features. China's sovereignty claim over the Nansha Islands is a claim over the archipelago as a whole, rather than separate claims over individual isolated features. However, the Tribunal artificially fragmented the Nansha Islands into discrete and unrelated features, assessing the legal status of each feature in isolation. This approach is erroneous not only in fact, ignoring the archipelago's unity as a geographical unit, but also in law, as it contravenes the principle of archipelagic integrity under international law. The Tribunal's error lies in its application of Article 121 of UNCLOS to individual features that form part of the Chinese Nansha Islands archipelago, adjudicating their status and maritime entitlements in isolation. This "divide and conquer" methodology effectively constitutes a dismemberment of, and encroachment upon, China's sovereignty over the Nansha Islands.
Unlawful denial of historic rights and international treaties
The Tribunal further comprehensively denied China's historic rights in the South China Sea. The award asserts that China's claims based on the "nine-dash line" and its maritime claims rooted in historic rights lack legal basis.This determination likewise fails to withstand legal scrutiny. China's historic rights in the South China Sea are rooted in over two millennia of continuous presence and effective administration. From maritime navigation in the South China Sea during the Western Han Dynasty, to detailed records in the Geng Lu Bu (seafaring compass manuals) of the Ming and Qing dynasties, and through to the restoration of sovereignty after World War II in accordance with the Cairo Declaration and the Potsdam Proclamation, China's sovereignty over the South China Sea islands and related maritime rights are grounded in historical accumulation and international law.The 1943 Cairo Declaration explicitly stipulates that "all the territories Japan has stolen from the Chinese, such as Manchuria, Formosa (Taiwan), and the Pescadores, shall be restored to the Republic of China," which legally encompasses the South China Sea islands that Japan had seized. Furthermore, Article 8 of the 1945 Potsdam Proclamation reaffirms that "The terms of the Cairo Declaration shall be carried out," further restricting Japan's sovereignty to the four main islands of Honshu, Hokkaido, Kyushu, and Shikoku. Following Japan's surrender, these legal provisions entered into force. Between November and December 1946, the Chinese government dispatched four vessels—the Yongxing, Zhongjian, Taiping, and Zhongye, to conduct repossession ceremonies, re-erect sovereignty markers, and station troops on the Xisha and Nansha Islands respectively. Concurrently, surveying, mapping, and resource reconnaissance were carried out, and the restoration of sovereignty was publicly proclaimed. The entire process elicited no objections from neighboring States. In 1947, the Chinese government approved the Comparison Table of Old and New Names of the South China Sea Islandsand published the Location Map of the South China Sea Islandsbearing the eleven-dash line (the predecessor of the later nine-dash line).
In 1948, this map was formally incorporated into the officially published Administrative Map of the Republic of China, thereby completing the international law procedure of publicizing sovereignty claims. The post-war maritime order in the South China Sea and the scope of China's sovereignty were thus firmly established.
In conclusion, the South China Sea arbitration award is vitiated by substantial factual and legal defects, rendering it manifestly erroneous.During its proceedings, the Tribunal failed to give due consideration to objective facts and credible evidence. More egregiously, it attempted to deny long-established historic and conventional treaty rights by applying highly controversial standards, contravening the fundamental international law principle that historic rights shall be respected. The Tribunal's misinterpretation of Article 121 of UNCLOS, its dismemberment of the integral nature of the Nansha Islands, and its wrongful denial of China's historic and treaty rights collectively amount to a grave miscarriage of justice in the South China Sea arbitration.
The author is a Member of the Hong Kong Basic Law Committee of the NPCSC, and holds Ph.D. in Law at Tsinghua University
The views do not necessarily reflect those of DotDotNews.
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