Perspectivas 2017

J OF CHIN POLIT SCI (2017) 22:185–210
DOI 10.1007/s11366-017-9472-0
R E S E A R C H A RT I C L E
Legitimacy, Jurisdiction and Merits in the South

China Sea Arbitration: Chinese Perspectives
and International Law
Jiangyu Wang 1
Published online: 18 March 2017

# Journal of Chinese Political Science/Association of Chinese Political Studies 2017
Abstract One of the most significant events in China’s history of engaging interna-
tional law was its legal defeat in the South China Sea Arbitration case. The case was
brought by the Republic of Philippines on its disputes with China concerning maritime
entitlements in the South China Sea. The Arbitral Tribunal ruled in favor of the
Philippines, first on the jurisdiction and admissibility issues in October 2015, and
finally on the merits in July 2016. China not only refused to accept the Tribunal’s
authority, but also vigorously attacked the final award as being invalid and even illegal.
This paper critically examines the different views, particularly the Chinese perspec-
tives, on three major legal aspects of this case, including (1) the legitimacy of the
Arbitral Tribunal, (2) whether the Tribunal had jurisdiction over the case, and (3)
whether the Tribunal erred in applying UNCLOS on certain important legal issues
concerning the merits of the case, in light of the two awards (the SCS Jurisdiction
Award and the Merit Award) and the relevant rules and doctrines in international law.
The paper then argues that, while the Tribunal’s own legitimacy seems to be unques-
tionable, whether it had jurisdiction over the dispute is debatable. Most likely it has, but
China’s certain arguments against the jurisdiction are worthy of discussion. However,
the final award’s interpretation and application of certain provisions of UNCLOS are
problematic and possibly erroneous. The analysis, however, suggests that China would
have been in a much better position on the legal front had it formally participated in the
case from the jurisdictional stage. Finally, the paper discusses the implication of the
arbitration on China’s attitude toward international law.
Keywords South China Sea Arbitration . Law of the Sea . China and international law .
Historic rights . International dispute resolution . International rule of law
* Jiangyu Wang
lawwjy@nus.edu.sg
1
Faculty of Law, National University of Singapore, Singapore, Singapore
186 Wang J.
Introduction
The South China Sea Arbitration (The Republic of Philippines v. The People’s Republic
of China) is deemed a landmark case in the history of both international law and
international relations because of not only the geopolitical significance of the dispute
but also the determination of the relevant tribunal in rendering a ruling to boldly define
the rights, entitlements, and obligations of the parties based on the United Nations
Convention on the Law of the Sea (hereinafter UNCLOS or the Convention).1
The arbitration brought to a historical level the longstanding disputes involving both
territorial and maritime claims in the South China Sea, a vast body of semi-enclosed
water in the south of continental Asia. Encompassing an area of about 3.7 million
square kilometers (which is roughly the size of Mexico), it is surrounded by mainland
China, Taiwan and several Southeast Asian countries [12]. Chinese literature usually
classifies the physical features in the South China Sea into three groups of islands and
one submerged bank, which are named, in Chinese mandarin, Nasha Qundao (the
Spratly Islands), Xisha Qundao (the Paracel Islands), Dongsha Qundao (the Pratas
Islands) and Zhongsha Qundao (the Macclesfield Bank) [33:1–2; 31:2–3]. While China
and Vietnam have disputed about the ownership of the Paracel islands for decades,
most of the disputes have arisen out the claims over the Spratly Islands, or Nansha
Qundao, which contains more than 230 features including islands, shoals, reefs and
banks [23:1]. The claimant states are Brunei, The People’s Republic of China (PRC, or
China, whose claims are identical to that of Taiwan), the Philippines, and Vietnam.
Although disputed claims over the islands and other geographic features in the South
China Sea arguably date back to at least a century ago [15: Chapters 2, 3 and 4],2 this case
was the first time in history that the disputes were brought to an international tribunal for
adjudication by one of the claimants. On 22 January 2013, the Philippines initiated
arbitration proceedings against China to seek the settlement of its disputes with China
concerning the relevant claims in South China Sea by an arbitral tribunal to be established
in accordance with Annex VII of the Convention. On 29 October 2015, the Arbitral
Tribunal (the Tribunal hereinafter) so established issued its first award, ruling that it had
jurisdiction over the case. 3 On 12 July 2016, the Tribunal rendered its second and final
award on the merits of the case, ruling in favor of the Philippines on almost all its claims,
and dealing China a complete defeat in the case.4
China made it clear, from the very beginning of the case, that it would neither accept nor
participate in the arbitral proceedings for both legal and political reasons. As it stated in a
Note Verbale in response to the Philippines’ initiation of the case, the Bcore^ of the disputes
was about Bterritorial disputes over some islands and reefs of the Nansha Islands^, a
sovereignty-related issue which is beyond of the scope of UNCLOS. 5 In addition, once
1
Information about this case from the Permanent Court of Arbitration can be found at http://www.pcacases.
com/web/view/7 (last visited 1 October 2016).
2
See also [23:5–6].
3
The South China Sea Arbitration Award on Jurisdiction and Admissibility (The Republic of Philippines vs.
The People’s Republic of China), PCA Case No. 2013–19, 29 October 2015 (hereinafter the BSCS Jurisdiction
Award^).
4
The South China Sea Arbitration Award (The Republic of Philippines vs. The People’s Republic of China),
PCA Case No. 2013–19, 12 July 2016 (hereinafter the BSCS Merit Award^).
5
Note Verbale from the Embassy of the People’s Republic in Manila to the Depart of Foreign Affairs of the
Republic of the Philippines, 19 February 2013, quoted in the SCS Jurisdiction Award, para. 27.
Faculty of Law, National University of Singapore 187
the arbitral procedure started, governmental and semiofficial agencies in China issued
numerous documents to defend China’s non-participation position and repudiate, some-
times quite emotionally, the criticisms that China did not respect international rule of law.
These documents include, most significantly, a Position Paper by the PRC Government,6 a
Statement of the Chinese Society of International Law [7], and several statements and
remarks by the PRC Ministry of Foreign Affairs and its Ministers.7 Of course, none of these
should Bbe regarded as China’s acceptance of or its participation in the arbitration,^
according to China’s official stance.8
The official statements, together with media comments and academic publications in
China, offer a rudimentary framework of the Chinese perspectives on the South China
Sea arbitration case, which focus on three fronts in international law.9 First, China has
consistently argued that the Arbitral Tribunal does not have jurisdiction over the case.10
Second, China has attacked the legitimacy of the Tribunal as well as the neutrality of the
arbitrators.11 Third, Chinese officials and scholars have criticized the merits of the final
Merit Award because it denied almost all of China’s claims in the South China Sea,
especially China’s assertion of historic rights along the so-called Bnine-dash line^ and
the legal status of the geographic features currently under Chinese occupation. In short,
China has portrayed the arbitral institution as a Blaw-abusing tribunal^ which has issued
an Bill-founded^ award that Babuses international law [and] threatens world order^.12
Outside China, the prevailing view is that China’s behavior in the South China Sea
shows deep disrespect for international law, and the SCS arbitral awards rightly uphold
justice in the international legal order.13 As The Economist opined, BThe ruling by the
Permanent Court of Arbitration in The Hague … is firm, clear and everything China
6
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, English version
available at http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1217147.shtml (hereinafter the BPRC Position
Paper^).
7
See e.g., BStatement of the Ministry of Foreign Affairs of the People’s Republic of China on the Award of 12
July 2016 of the Arbitral Tribunal in the South China Sea Arbitration Established at the Request of the
Republic of the Philippines^, 12 July 2016, English version available at http://www.fmprc.gov.cn/mfa_
eng/zxxx_662805/t1379492.shtml (hereinafter the BFMPRC Statement on SCS Merit Award^); BRemarks
by Chinese Foreign Minister Wang Yi on the Award of the So-called Arbitral Tribunal in the South China Sea
Arbitration^, PRC Ministry of Foreign Affairs, 12 July 2016, English version available at http://www.fmprc.
gov.cn/mfa_eng/zxxx_662805/t1380003.shtml (hereinafter BWang Yi Remarks on SCS Merit Award^); and
BVeil of the Arbitral Tribunal Must be Tore Down – Vice Foreign Minister Liu Zhenmin Answers Journalists’
Questions on the So-called Binding Force of the Award Rendered by the Arbitral Tribunal of the South China
Sea Arbitration Case^, PRC Ministry of Foreign Affairs, 13 July 2016, English version available at
http://www.fmprc.gov.cn/mfa_eng/wjbxw/t1381879.shtml (Hereinafter BLiu Zhenmin’s Remarks on SCS
Merit Award^).
8
SCS Jurisdiction Award, para. 56.
9
China has also argued that the arbitration Bis completely a political farce staged under legal pretext^,
indicating that it was the maneuver of China’s enemies. See Wang Yi Remarks on SCS Merit Award, supra
note 7.
10
See e.g., PRC Position Paper, supra note 9 and [7] Chinese Society of International Law, supra note 10.
11
See e.g., Liu Zhenmin’s Remarks on SCS Merit Award. See also [24].
12
See BLaw-abusing Tribunal Issues Ill-founded Award on South China Sea Arbitration^, Xinhua News
Agency, 12 July 2016, accessed 1 March 2017 @ http://news.xinhuanet.com/english/2016-07/12
/c_135507651.htm and BOP-ED: South China Sea Arbitration Abuses International Law, Threatens World
Order^, People’s Daily, 29 June 2016, accessed 1 March 2017 @ http://en.people.cn/n3/2016/0629/c90000-
9078797.html.
13
[5] (stating that China’s land reclamation in the South China Sea Bchallenges an area of international laws^
because it was Ban attempt to alter facts on the ground (or in the water))^.
188 Wang J.
did not want to be^ [10]. China was advised to accept the ruling to comply with
international law. BIf, in its fury, China flouts the ruling … it will be elevating brute
force over international law as the arbiter of disputes among nations^ [10].
But the Tribunal’s bold ruling has also surprised many observers. Although it was
widely anticipated that the Tribunal would rule in favor of the Philippines, 14 the
Bcourt’s rulings go further than expected in saying China was violating international
law in the South China Sea^ [11].15 The main concern has been geopolitical: the worry
is that the ruling might push China into a corner to make it more provocative and
aggressive, as BChina’s defeat was so crushing that it has left Beijing few ways to save
face^ [27:76].16 The legal Bquality^ of the ruling seems to have been taken for granted;
that is, the arbitral awards unquestionably represent good international law. It is
important, however, to point out that, although the Tribunal’s decisions in the awards
have firmly clarified many relevant issues on the South China Sea disputes in interna-
tional law, the awards contain, unfortunately, many blemishes in their legal reasoning
concerning both the jurisdiction and merit issues. On the other hand, It may be true that
many of China’s arguments against the jurisdiction of the Tribunal and critiques of the
awards are flawed to various degrees, but this does not necessarily mean that the
awards are entirely correct in their views about the international law issues concerned.
This paper critically examines the different views, particularly the Chinese perspec-
tives, on the three major international law aspects of this case, including (1) the
legitimacy of the Tribunal, (2) whether the Tribunal had jurisdiction over the case,
and (3) whether the Tribunal erred in applying UNCLOS on certain important legal
issues concerning the merits of the case, in light of the two awards (the SCS Jurisdiction
Award and the Merit Award) and the relevant rules and doctrines in international law.
The paper then argues that, while the Tribunal’s own legitimacy seems to be unques-
tionable, whether it actually had jurisdiction over the dispute is debatable. Most likely it
has, but China’s several arguments against the jurisdiction are worthy of discussion.
However, the Merit Award’s interpretation and application of certain provisions of
UNCLOS are problematic and possibly erroneous. Finally, the legal analysis suggests
that China would have been in a much better position on the legal front had it formally
participated in the case from the jurisdictional stage.
The paper is organized as follows. After this Introduction, Part I discusses the
general settlement of maritime disputes under UNCLOS and its relevance to the South
China Sea disputes. The limitations of UNCLOS’ dispute settlement mechanisms are
also addressed. Part II briefly describes the procedural history of the case and the key
arguments and findings in the awards. Part III examines the legitimacy of the Tribunal
by looking into its composition and the way it was established. The jurisdictional issues
are considered in Part IV. Part V assesses the decisions on the merit in the Merit Award,
especially those concerning historic rights, the nine-dash line, and the definition of
14
[1] (stating, before the final award was issued, BThere is not much suspense about what the tribunal will
decide: it will almost certainly side with the Philippines^).
15
See also [27:76] (stating BMany observers had expected the tribunal to rule in Manila’s favor …… But few
anticipated a ruling as definitive as the one ultimately handed down^.)
16
See also [11] (stating Bthe sweeping condemnation of [China’s] activities by the court could raise tensions in
the South China Sea further, embolden other countries to launch copy-cat court actions, and possibly lead
China to react strongly^).
islands. Part VI looks at the implications of the case on China’s evolving attitude
toward international law, then concludes.
The General Scheme of Dispute Settlement under UNCLOS
Its 320 articles and nine annexes make UNCLOS one of the largest codes in interna-
tional law. With the ambition Bto settle, in a spirit of mutual understanding and
cooperation, all issues relating to the law of the sea,^17 it is not a surprise that Bdispute
settlement was one of the most contentious issues^ in the negotiations of the Conven-
tion [25:167]. But eventually, Part XV of the Convention, which establishes an
elaborate system for the settlement of maritime disputes, became one of the main
achievements of the Third United Nations Conference on the Law of the Sea [21:1].
UNCLOS is premised on the basic principle that BStates Parties shall settle any
dispute between them concerning the interpretation or application of this Convention
by peaceful means^ in accordance with Article 2(3) of the United Nations Charter.18
This is followed by the principle of party autonomy to allow the states who are parties
to UNCLOS to agree at any time to settle their dispute by Bany peaceful means of their
own choice^.19
What is most relevant to the South China Sea arbitration is UNCLOS’ Bprinciple of
compulsory settlement,^ which applies Bif the parties cannot agree upon a means of
settlement, or if they choose a means which proves unsuccessful^ [25:169]. In other
words, an agreement of settlement among the parties to a dispute has preemptive
power. The system of dispute settlement under Part XV is thus a default system which
comes into operation only when no settlement can be reached by the parties by recourse
to such means of their own choice and that Bthe agreement between the parties does not
exclude any further procedure^.20
Thus, Section 2 of Part XV of the Convention offers a set of compulsory procedures
whereby a dispute can be submitted unilaterally by any party to a court or tribunal
through one of the means prescribed in this Section, if the parties cannot reach
settlement on their own choice. 21 Being Bcompulsory^, first of all, means they will
generate binding decisions. The four means through which a signatory State of
UNCLOS can have recourse to the compulsory procedures include the International
Tribunal for the Law of the Sea (ITLOS), the International Court of Justice (ICJ), an
arbitral tribunal constituted in accordance with Annex VII of UNCLOS, and a special
arbitral tribunal constituted in accordance with Annex VIII of UNCLOS.22 Such a court
or tribunal Bshall have jurisdiction over any dispute concerning the interpretation or
application^ of UNCLOS regarding the dispute in question.23 The Arbitral Tribunal in
the South China Sea arbitration was one so established under Annex VII of UNCLOS.
17
UNCLOS, Preamble.
18
UNCLOS, Article 279.
19
20
UNCLOS, Article 281(1).
21
22
23
190 Wang J.
However, the right of a party to refer a dispute unilaterally for binding settlement is
subject to a number of exceptions, the most important of which is the written declara-
tion of a State expressing that it does not accept any one or more of the compulsory
procedures with respect to disputes relating to sea boundary delimitations, historical
bays or titles, military activities and certain kinds of law enforcement activities in
regard to the exercise of sovereign rights or jurisdiction in its Exclusive Economic
Zone, or the exercise of functions of the United Nations Security Council.24 As will be
discussed later, one of the key issues in the South China Sea arbitration is about
whether the Tribunal’s jurisdiction is precluded by China’s 2006 Declaration made
under Article 298.
It is also important to point out the Bsovereignty exception^ to the compulsory
dispute settlement of UNCLOS. That is, it is widely agreed that the Convention does
not govern sovereignty related issues. Accordingly, the questions of sovereignty and
related rights over land territory are outside the subject matter of a UNCLOS court or
tribunal. 25 This was confirmed in the Chagos arbitration, 26 in which the tribunal
concluded that it was the intent of the UNCLOS negotiators to exclude issues
concerning land sovereignty from the ambit of the Convention27:
In the Tribunal’s view, had the drafters intended that such [sovereignty] claims
could be presented as disputes Bconcerning the interpretation or application of the
Convention,^ the Convention would have included an opt-out facility for States
not wishing their sovereignty to be adjudicated, just as one sees in Article
298(1)(a)(i) in relation to maritime delimitation disputes.
The South China Sea Arbitration: Procedural History, Issues and Key
Findings
As noted previously, the Philippines commenced the arbitration proceedings in January

2013, seeking to establish an UNCLOS Annex VII tribunal to adjudicate its disputes
with China concerning maritime entitlements in the South China Sea. Despite the
objection to the arbitration in China’s Note Verbale in February 2013, all five arbitrators
were appointed by June 2013, marking the establishment of the SCS Tribunal. On 11
July 2013, the Tribunal formalized the appointment of the Permanent Court of Arbi-
tration (PCA) as Registry for Proceedings of the South China Sea arbitration. The
Tribunal adopted the Rules of Procedure for the arbitration on 27 August 2013.
24
25
[28:31] (stating BIt is generally acknowledged that the Convention does not deal with questions of
sovereignty and other rights over land territory, and that disputes concerning these questions are not subject
to the jurisdiction ratione materiae of UNCLOS arbitral tribunals.^). See also [26: paras. 18 and 19].
26
The Chagos Marine Protected Area Arbitration (Mauritius v United Kingdom), UNCLOS Annex VII
Tribunal, Award, 18 March 2015, accessed @ http://www.pcacases.com/pcadocs/MU-UK%2020150318%20
Award.pdf (hereinafter the Chagos award).
27
Chagos award, supra note 26, para. 217.
In light of China’s objection to the Tribunal’s jurisdiction expressed through its

diplomatic notes, public statements, the Position Paper, and letters to members of the
Tribunal from the Chinese Ambassador to the Netherlands, the Tribunal decided to
bifurcate the proceedings and convene a hearing on the matter of the Tribunal’s
jurisdiction and the admissibility of the Philippines’ submissions, which it conducted
in July 2015 (BHearing on Jurisdiction^, hereinafter).28
For the whole arbitration, the Philippines presented 15 specific final submissions,
grouped by the Tribunal into four categories of inter-related matters. First, the Philip-
pines sought a declaration from the Tribunal that China’s maritime entitlements in the
South China Sea may not extend beyond those permitted by UNCLOS. In particular,
the Philippines contested that China’s claims to sovereign rights and jurisdiction, and to
historic rights within the nine-dash line marked on Chinese maps, were without lawful
effect to the extent that they exceeded the entitlements that China would be permitted
by UNCLOS. Second, the Philippines requested the Tribunal to determine that all of the
features claimed by both China and the Philippines in the Spratly Islands, as well as
Scarborough Shoal, were either submerged banks or low-tide elevations which were
incapable of generating an entitlement to either an exclusive economic zone (EEZ) or
continental shelf. Third, the Philippines asked the Tribunal to resolve a series of
disputes between China and the Philippines concerning the lawfulness of China’s
actions in the South China Sea, including actions which interfered with the
Philippines’s exercise and enjoyment of the rights within and beyond its EEZ and
continental shelf, as well as those which inflicted severe harm on the maritime
environment by supporting Chinese fishermen’s fishing activities and engaging in land
reclamation. Fourth, the Tribunal was asked to find that certain actions of China
aggravated and extended the disputes between the Parties during the course of this
arbitration. 29 Further, on jurisdiction alone, the Philippines requested the Tribunal to
rule that the Philippines’ claims Bare entirely within its jurisdiction and are fully
admissible^.30
On 29 October 2015, the Tribunal issued the unanimous Award on Jurisdiction and
Admissibility. Briefly, the Tribunal not only ruled that it was properly constituted under
UNCLOS, but also rejected all of China’s challenges to the Tribunal’s jurisdictional
authority. The Tribunal concluded that the dispute in question concerned neither
territorial sovereignty, nor maritime delimitation which was alleged to be excluded
by a declaration made by China in 2006. Further, the Tribunal rejected the argument
that there was an agreement between China and the Philippines to choose a means of
their own to settle the dispute. The Tribunal held that it did have jurisdiction with
respect to the matters raised in seven of the Philippines’ submissions.31
28
SCS Jurisdiction Award, paras. 68 and 86.
29
SCS Merit Award, paras. 7–10. See also SCS Jurisdiction Award, paras. 4–6 (grouping the Philippines into
three inter-related issues as the fourth one was not yet raised by the Philippines during the Hearing on
Jurisdiction.
30
BPCA Press Release: Arbitration between the Republic of the Philippines and the People’s Republic of
China^, Permanent Court of Arbitration, The Hague, 29 October 2015, accessed 1 March 2016 @ http://www.
pcacases.com/web/view/7 (hereinafter BSeventh PCA Press Release 29,102,015^).
31
192 Wang J.
It would not be imprecise to describe China’s response to the above award as a

furious one. A day after the Jurisdiction Award was rendered, the PRC Ministry of
Foreign Affairs issued a statement on the award, which exclaimed,32
Disregarding that the essence of this arbitration case is territorial sovereignty and
maritime delimitation and related matters, maliciously evading the declaration on
optional exceptions made by China in 2006 under Article 298 of the UNCLOS, and
negating the consensus between China and the Philippines on resolving relevant
disputes through negotiations and consultations, the Philippines and the Arbitral
Tribunal have abused relevant procedures and obstinately forced ahead with the
arbitration, and as a result, have severely violated the legitimate rights that China
enjoys as a State Party to the UNCLOS, completely deviated from the purposes and
objectives of the UNCLOS, and eroded the integrity and authority of the UNCLOS.
In short, the statement reiterated China’s position that the Jurisdiction Award Bis null
and void, and has no binding effect on China^.33
The Tribunal nevertheless proceeded with the Hearing on Merits in November 2015.
34
On 12 July 2016, the Tribunal released the much-anticipated merit Award, again a
unanimous one, in which it rejected all of China’s claims and ruled overwhelmingly in
favor of the Philippines’ claims. On historic rights and the nine-dash line, the Tribunal
decided that UNCLOS comprehensively allocated rights to maritime areas, irrespective
of pre-existing rights. For this reason, China’s historic rights to resources in the South
China Sea, if they ever existed, were extinguished to the extent they were incompatible
with the EEZs provided for in the Convention. The Tribunal concluded that China’s
claims of historic rights to resources in the waters of the South China Sea based on the
Bnine-dash line^ did not have legal basis under UNCLOS. On the legal status of
features and entitlements to maritime areas, the Tribunal declared that none of the
Spratly Islands, individually or collectively, were capable of generating extended
maritime zones such as an EEZ or continental shelf (beyond a 12-nautical-mile
territorial sea for some features). On this basis, the Tribunal concluded that certain
sea areas claimed by China were within the EEZ of the Philippines. In terms of the
lawfulness of Chinese actions, the Tribunal ruled that China had violated the sovereign
rights of the Philippines in its EEZ by interfering with Philippine fishing and petroleum
exploration, constructing artificial islands, and failing to prevent Chinese fishermen
from fishing in the Philippines’ EEZ. In addition, the Tribunal also declared that China
had caused severe harm to the maritime environment, and had also aggravated the
dispute since the start of the arbitration procedure.35
32
BStatement 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^, PRC Ministry of Foreign Affairs, 30 October 2015, accessed @
http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1310474.shtml.
33
Id.
34
SCS Merit Award, para. 69.
35
See generally the SCS Merit Award. For a summary of the Tribunal’s findings see BPress Release: The
South China Sea Arbitration^, the Permanent Court of Arbitration, The Hague, 12 July 2016, available at
http://www.pcacases.com/web/view/7 (hereinafter the B11th PCA Press Release 12,072,016^).
China’s response to the final award was no surprise to anybody. A statement of the
PRC Ministry of Foreign Affairs, issued on the same day of the award, Bsolemnly
declares that the award is null and void and has no binding force. China neither accepts
nor recognizes it^. 36 The statement, together with other remarks by senior Chinese
officials, continued the Chinese practice of challenging both the legitimacy and juris-
diction of the Tribunal.
The Legitimacy of The Tribunal and The Neutrality of The Arbitrators
It is rather unusual in international dispute settlement that a State party to a dispute

would use very strong language to assault the credibility of the international tribunal
that adjudicates the dispute, as well as the neutrality of the members of the tribunal. In
the South China Sea Arbitration, China launched such attacks, and they should
essentially be treated as another argument advanced by China against the authority of
the Tribunal to handle this case, given the attacks were delivered by Chinese authorities
through formal channels. A day after the Merit Award was issued, Liu Zhenmin, a Vice
Foreign Minister of the PRC, raised four points to call into question the legitimacy of
the Tribunal and the arbitrators. In Liu’s own words, BI mainly want to explain to you
on whether the so-called Arbitral Tribunal is a legitimate ‘international court’ in order
to tear down the veil of the Tribunal^.37
First, Liu argued, the Tribunal was not to be given the weight of an Binternational
court^ as understood by many. The Tribunal did not have any relationship with the
International Court of Justice (ICJ), was not part of the Hamburg-based International
Tribunal for the Law of the Sea (ITLOS) established under UNCLOS, and was not in
the system of the PCA. Thus, the Tribunal Bis worth nothing^ because it is not an
Binternational court^ as such.38
Second, Liu accused the Tribunal’s establishment of being politicized. In this regard,
the fire was focused on the Japanese national who picked most of the arbitrators,39
The establishment of the Arbitral Tribunal is in fact the result of political

manipulation. The Arbitral Tribunal consists of five arbitrators. Apart from
Professor Rüdiger Wolfrum from Germany, the arbitrator designated by the
Philippines, the other four arbitrators were appointed by the Japanese judge
Shunji Yanai, who was the then ITLOS President. Who is Shunji Yanai? He is
a judge of the ITLOS now and before as well as the Chairman of Advisory Panel
on Reconstruction of the Legal Basis for Security set by the Shinzo Abe
administration. He plays an important role in helping Shinzo Abe with the lifting
of the ban on collective self-defense and challenging the international order after
World War II. He was also former Japanese Ambassador to the US. Various
sources prove that the composition of the Arbitral Tribunal was completely
36
FMPRC Statement on the SCS Merit Award, supra note 7.
37
Liu Renmin’s Remarks on SCS Merit Award, supra note 7.
38
Id.
39
Id.
194 Wang J.
manipulated by him. Moreover, he also exerted his influence on the proceedings

of the Arbitral Tribunal afterwards.
Third, Liu criticized the composition of the panel for being Eurocentric, questioning
its representativeness. Liu stressed that four of the five arbitrators came from Europe,
and the one from Ghana lived in Europe permanently. BSo does a court like this have
any representativeness? Do the judges know well about Asian cultures? Do they know
the South China Sea issue well?^ 40 To the eyes of China, Bthese factors matter to
representativeness and fairness of an arbitral tribunal or court^.41
Lastly, Liu emphasized the inconsistency in the views of some arbitrators and
witnesses concerning the South China Sea disputes. In particular, he drew attention to
one witness who, in his own academic writing, stated that Bat least 12 ocean terrains can
be classified as islands in Nansha Qundao, so 200 nautical miles of exclusive economic
zone can be claimed.^ Liu then pointed out that Bwhen he stood as the witness in the
Arbitral Tribunal, he withdrew his previous view and said ‘none of them are islands.^.42
Despite the emotive language, certain points in Liu’s remarks above deserve nu-
anced analysis. The first question is the nature of the Tribunal itself. It is true that the
Tribunal was temporarily established for the special purpose of adjudicating the
disputes between the Philippines and China and was not a permanent establishment,
but this nature per se does not in any way undermine its legitimacy as a tribunal for
dispute settlement. This is simply how arbitration works in international dispute
settlement. International arbitration has been defined as Ba specially established mech-
anism for the final and binding determination of disputes … by independent arbitrators,
in accordance with procedures, structures and substantive legal or non-legal standards
chosen directly or indirectly by the parties^ [22:1]. More significantly, the establish-
ment of such an arbitral tribunal is one of the fora authorized by Article 287 of
UNCLOS. Hence, there is no basis for a State Party to UNCLOS to claim that such
a tribunal be Bworth nothing,^ as long as the tribunal is established Bin accordance with
Annex VII^ of the Convention.43
Is it problematic that four of the five arbitrators were appointed by Judge Shunji
Yanai, a Japanese national? According to Article 3 of Annex VII, each party to the
dispute shall appoint one member of the tribunal who may be its national.44 The other
three members shall be appointed by agreement between the parties. 45 In case the
parties could not reach an agreement, Bthe President of the International Tribunal for the
Law of the Sea shall make the necessary appointments^. 46 That is, the President of
ITLOS has the duty to appoint other members if the parties to the dispute cannot agree
on the appointments. In the South China Sea arbitration, the Philippines appointed
Judge Rudiger Wolfrum as a member of the Tribunal when it initiated the arbitral
proceedings.47 Because China refused to participate in the proceedings, the Philippines
40
Id.
41
Id.
42
Id.
43
UNCLOS, Article 287(1)(c).
44
UNCLOS, Annex VII, Article 3(b).
45
UNCLOS, Annex VII, Article 3(d).
46
UNCLOS, Annex VII, Article 3(e).
47
requested Judge Shunji Yanai to appoint the other four members of the Tribunal, which
he did in his official capacity as the President of ITLOS.48 Once the chairman of a panel
which advised the Japanese Prime Minister on his plan to revise Japan’s post-war
pacifist Constitution to allow military action overseas, Yanai was described by Xinhua,
China’s national news agency, as a Btypical rightist, hawkish figure^ [24]. However, for
the South China Sea Arbitration, Shunji Yanai acted ex officio in making the appoint-
ments. As observed by a commentator, BYanai’s involvement could have been avoided.
If China had decided to take part in the proceedings, it could have named one of the
tribunal’s arbitrators and jointly appointed three others in agreement with the
Philippines^ [24]. Of course, the possibility for China to raise such an objection would
be lesser if Judge Yanai excused himself from such a role Bgiven the territorial and
maritime disputes between China and Japan in the East China Sea, and Tokyo’s
attempts to involve itself in the South China Sea issue,^ as suggested by Liu Zhenmin.
49
Needless to say, Yanai was not legally required to avoid his involvement in the case.
The fact that all the members of the Tribunal have strong European backgrounds
does not necessarily emasculate its representativeness. Legally, UNCLOS and Annex
VII neither requires, nor prohibits the members of the tribunal to come from a particular
region or regions. Politically, given the complexities of political conflicts and security
clashes in Asia, it would not necessarily be in China’s favor if the arbitrators were from
Asia. The result might well have been the opposite. Finally, the credibility of the
arbitrators and witnesses concerning inconsistencies in their views before and after the
arbitration was initiated should have to be questioned by China on the stand. Had it
taken part in the arbitration, China could have done so. In short, as the Tribunal pointed
out (on an issue not related to its own legitimacy), Bit is a general principle of
international law that ‘bad faith is not presumed,’^ unless it is actually proven.50
The Jurisdictional Issues
China’s unyielding position of Bnon-participation and no-acceptance^ was predomi-

nately based on its objection to the Tribunal of jurisdiction on this dispute. China has
advanced three main arguments in this regard. First, China asserted that Bthe subject-
matter of the arbitration is the territorial sovereignty over several maritime features in
the South China Sea, which is beyond the scope of the Convention^.51 Second, BChina
and the Philippines have agreed, through bilateral instruments and the Declaration on
the Conduct of Parties in the South China Sea, to settle their relevant disputes through
negotiations^. 52 Third, in any event, the subject-matter of the arbitration Bwould
constitute an integral part of maritime delimitation between the two countries, thus
falling within the scope of the declaration filed by China in 2006 in accordance with the
Convention, which excludes, inter alia, disputes concerning maritime delimitation from
compulsory arbitration and other compulsory dispute settlement procedures^.53
48
SCS Jurisdiction Award, paras. 29–31.
49
Liu Renmin’s Remarks on SCS Merit Award, supra note 7.
50
51
PRC Position Paper, para. 3.
52
Id.
53
Id.
196 Wang J.
Both the Philippines and the Tribunal were aware of China’s jurisdictional objec-
tions. As recognized in the awards, the Philippines stated in its Notification and
Statement of Claim that it Bdoes not seek in this arbitration a determination of which
Party enjoys sovereignty over the island …… Nor does it request a delimitation of any
maritime boundaries^.54
This part critically examines China’s aforementioned arguments in light of the
Tribunal’s awards. As noted previously, the Tribunal rejected all China’s arguments
concerning jurisdiction and admissibility on the basis of the Philippine’s submissions.
However, China’s argument on territorial sovereignty is not entirely groundless, though
the Tribunal might be right on setting aside China’s two other arguments.
Territorial Sovereignty
As noted previously, disputes concerning territorial sovereignty are excluded from the
coverage of UNCLOS, on which China’s first jurisdictional objection is premised. The
Tribunal ruled, however, that this case did not have anything to do with sovereignty,
although it also did not bother to offer lengthy reasoning, possibly because it believed it
could be taken for granted that the Philippines’ submissions were not related to
sovereignty. The Tribunal invented a legal test, determining that sovereignty would
be concerned Bif it were convinced that either (a) the resolution of the Philippines’s
claims would require the Tribunal to first render a decision on sovereignty, either
expressly or implicitly; or (b) the actual objective of the Philippine’s claims was to
advance its position in the Parties’ dispute over sovereignty^.55 Applying the test to the
disputes in question, the Tribunal directly concluded that B[n]either of these situations
… is the case^ because it did not conclude that the Philippines was seeking a decision
on the sovereignty of these maritime features.56
Clearly the Tribunal adopted a rather technical but unelaborate approach to reach
this conclusion. This approach fails to convince if the counterarguments about the
sovereignty dimension of the disputes are seriously taken into consideration. There are
at least two such arguments which suggest the issues of sovereignty cannot be cut off
from the disputes.
First, one may argue that it is conceptually impossible to separate sovereignty issues
from the determination of the status of maritime features as rocks or islands. Although
it was submitted by the Philippines and accepted by the Tribunal that the SCS case was
not about a Bdetermination of which Party enjoys sovereignty over the islands claimed
by both parties,^57 any determination of the status of the features cannot be separated
from a pre-determination of the sovereignty of the features and sovereign rights of the
claimant states in South China Sea. That is to say, the status of the features as Bfully
entitled islands^ or Brocks^ and their sovereign status are always determined simulta-
neously. Take Taiping Island or Itu Aba as an example. Taiping is currently occupied by
Taiwan, officially known as the Republic of China (ROC) and referred to as the
BTaiwan Authority of China^ in the SCS Merit Award. 58 Taiwan claimed that it is
54
55
56
Id.
57
58
Ban island within the meaning of Article 121(1) of the UNCLOS,^ and thus entitled to
have both a territorial sea and EEZ [8]. The determination of a tribunal that Taiping is
not an island, but a rock, would automatically and instantaneously deprive Taiwan,
which actually occupies Taiping, of its claimed sovereign rights with respect to its EEZ
or continental shelf for the Taiping Island. The same logic applies to all the features
currently occupied by China, as well as any other claimants.
Second, the Philippines directly challenged the validity of China’s historic
rights based on the nine-dash line. Although China has not fully clarified the
nature of its claims in relation to the nine-dash line, there is little doubt the claims
are related to sovereignty, at least per China’s 2009 Notes Verbales which states
BChina has indisputable sovereignty over the islands in the South China Sea^. 59
As such, Antonios Tzanakopoulos observes, Bit is unclear how any finding on the
validity of the nine-dash line will not have the effect of prejudging the sovereignty
claim that this may represent on the part of China^[29:7]. True, the dispute was
Bpackaged^ by the Philippines as one concerning merely the technical interpreta-
tion of Article 121 of UNCLOS. However, it may be actually a dispute directly
involving sovereignty issues, as maintained by Sreenivasa Rao Pemmaraju, a
former Chairman of the International Law Commission and former President of
the Institue de Droit International. He observed [26: para. 52]:
China’s case, as it repeatedly emphasized, is that it acquired historic rights over

several of these maritime features through exercise of acts á titre de souverain.
The Chinese case then cannot be disputed or disapproved merely by looking at
the geological nature of the maritime features in question and the entitlements
they can or cannot generate in terms of the relevant provisions of the UNCLOS.
They can be assessed only by examining the nature of acts and functions of
sovereignty China claims to have performed from times immemorial or through
history.
In short, the Bdispute between the Philippines and China is obviously about sover-
eignty over maritime features in the SCS, and only relatedly over maritime zones and
the entitlements that the relevant features generate^ [29:6]. The Tribunal’s lack of
analysis on the sovereignty aspect of the dispute alone made the legal basis of its
jurisdiction rather weak.
Settlement of the Dispute by Other Means
In response to China’s argument that China and the Philippines had undertaken a
mutual obligation to settle their SCS disputes through Bfriendly consultations and
negotiations^ and thus Bagreed to seek settlement of the dispute by a peaceful means
of their own choice^ in accordance with Article 281 of UNCLOS,60 the Tribunal ruled
59
Notes Verbales of the Permanent Mission of the People’s Republic of China to the United Nations, 7
May 2009, CML/17/2009.
60
PRC Position Paper, para. 31. See also SCS Jurisdiction Award, para. 202.
198 Wang J.
that no such agreement existed to prevent the use of arbitration or other compul-
sory procedures. The Tribunal first examined the Declaration on the Conduct of
Parties in the South China Sea in 2002 (hereinafter the BDOC^), which was
asserted by China as one of the main documents that could establish an agreement
between China and other littoral states to settle their disputes through bilateral
negotiations. Indeed, the DOC provides that BThe Parties concerned undertake to
resolve their territorial and jurisdictional disputes by peaceful means, without
resorting to the threat or use of force, through friendly consultations and negoti-
ations by sovereign states directly concerned, in accordance with universally
recognized principles of international law, including the 1982 UN Convention
on the Law of the Sea^.61
To the extent it was accepted both by China and the Tribunal that a binding
instrument requires the intention of both parties to establish rights and obligations
between the parties,62 China asserted that the use of the word Bundertake^ suggested Ba
clear intention to establish an obligation between the two countries in this regard^.63 It
found support in an International Court of Justice (ICJ) judgement, Bosnia and
Herzegovina v. Serbia and Montenegro, in which Bundertake^ was interpreted to
committing to binding obligations.64 It thus concluded in its Position Paper that Bthe
relevant provisions in … the DOC are mutually reinforcing and form an agreement
between China and Philippines. On that basis, they have undertaken a mutual obliga-
tion to settle their relevant disputes through negotiations^.65
It was not difficult for the Tribunal to refute China’s argument. The Tribunal easily
distinguished the present SCS arbitration from Bosnia and Herzegovina v. Serbia and
Montenegro on the ground that, in the latter case, the court was operating clearly in a
legally binding treaty.66 In the present case, however, the Tribunal believed that Bthe
DOC was not intended to create legal rights and obligations^ by its drafters. 67 The
Tribunal discovered numerous official statements made by the drafters/negotiators of
the DOC from China and other participants before and after the DOC was adopted. For
example, in December 1999, the Chinese drafters stressed that the DOC draft reflected
the Bconsensus that the Code should be a political document of principle^.68 In August
2000, a spokesperson for the PRC Ministry of Foreign Affairs stated that the BCode of
Conduct will be a political document to promote good neighborliness and regional
stability instead of a legal document to solve specific disputes,^69 which was affirmed
by an official meeting report of the DOC’s Working Group on 11 October 2000. 70
Similar expressions can be found about other bilateral agreements between the Philip-
pines and China, and the subsequent conduct of the Parties to the DOC continued to
61
The DOC, Article 4 (emphasis added).
62
See PRC Position Paper, paras. 30–56; SCS Jurisdiction Award, para. 213.
63
64
ICJ Judgement of 26 February 2007, para. 162, cited also in PRC Position Paper, para. 38.
65
66
67
68
Memo of China’s Position Regarding the Latest Draft Code of Conduct by the ASEAN, para. 2 (18
December 1999), cited in SCS Jurisdiction Award, para. 217(a).
69
Ministry of Foreign Affairs of the People’s Republic of China, Spokesperson’s Comment on China-ASEAN
Consultation, p.1 (30 August 2000), cited in SCS Jurisdiction Award, para. 217(b).
70
SCS Jurisdiction Award, para. 217(c).
demonstrate that the DOC had been treated as a Bpolitical document^ rather than a
legally binding instrument.71
In short, the finding that the DOC was not intended as a legally binding agreement
was sufficient to exclude any prior agreement to block the Tribunal’s jurisdiction.
China was clearly barred by estoppel to claim legally binding effect of the DOC and
other bilateral statements. Additionally, it was clear that the DOC and other bilateral
statements do not exclude Bany further procedure^ other than peaceful negotiation.
The 2006 Declaration to Exclude Certain Disputes
Article 298 of UNCLOS allows States to declare that they exclude the application of
the compulsory binding procedures from the settlement of disputes under UNCLOS in
respect of certain specified categories of disputes. China availed itself of this opportu-
nity by making such a declaration in 2006, which takes away from the UNCLOS’
compulsory dispute settlement procedures the Bdisputes concerning maritime delimi-
tation, historic bays or titles, military and law enforcement activities, and disputes in
respect of which the Security Council of the United Nations is exercising the functions
assigned to it by the Charter of the United Nations^.72 That is, in China’s view, even
assuming the subject-matter of the arbitration were concerned with the interpretation
and application of UNCLOS, the subject-matter would be excluded by China’s 2006
Declaration because it formed an integral part of maritime delimitation.73
Interestingly, the Tribunal avoided directly addressing whether China’s 2006 Decla-
ration could effectively exclude the aforementioned issues, especially maritime delim-
itation, from its jurisdiction. Instead, it characterized China’s jurisdictional objection as
one that did not Bpossess an exclusively preliminary character^.74 That is, the Tribunal
considered that the applicability of the limitations and exceptions under Article 298 of
UNCLOS might depend on certain aspects of the merits of the Philippines’ claims. As
such, the Tribunal decided to go ahead with the case in order to rule on such objections
in conjunction with the merits according to its own Rules of Procedure.75
Essentially, the Tribunal Bdecided not to decide^ on whether the case involved
maritime boundary delimitation on the ground that it would pre-judge the merits of
the dispute [29:11]. This approach was permitted under the Tribunal’s own Rules of
Procedure, but looked to be Bdisguised replacement of concept^ in the eye of the
Chinese government, which, through a statement by the Chinese Society of Interna-
tional Law, sensibly argued, Bany determination of the status and maritime entitlements
of features will have an inevitable effect on the future delimitation between China and
the Philippines^ [7: para. 68].
71
SCS Jurisdiction Award, para. 218. In its introduction to the DOC, the Ministry of Foreign Affairs of the
People’s Republic of China still says in its webpage that Bthe DOC is an important political document jointly
signed by China and ASEAN countries, which demonstrates the political will of the Parities to promote
stability, increase mutual-trust and pushing forward cooperation in the South China Sea^. See Ministry of
Foreign Affairs of China, BThe Declaration on the Conduct of Parties in the South China Sea^, accessed 1
March 2017 @ http://www.fmprc.gov.cn/web/wjb_673085/zzjg_673183/yzs_673193/dqzz_673197
/nanhai_673325/t848051.shtml.
72
PRC Position Paper, para. 58. See also SCS Jurisdiction Award, para. 366.
73
PRC Position Paper, Part IV.
74
SCS Jurisdiction Award, paras. 380 and 390.
75
200 Wang J.
Assessment of China’s Position on the Tribunal’s Jurisdiction: What if China

Attended the Proceedings on Jurisdiction?
It sounds pointless, as a practical matter, to ask what the result could have been had
China attended at least the proceedings on jurisdiction. It is, however, a very meaningful
question to ask, as it concerns China’s general relations with international law. By
refusing to participate in any way in the South China Sea case, China has lost at least
two legal opportunities from the perspective of international law. One opportunity is
related to the constitution of the arbitral tribunal. As noted previously, according to
Article 3 of Annex VII to UNCLOS, from which the Tribunal derived its legitimacy and
procedural rules, each party to the dispute is allowed to appoint at least one member of
the tribunal, Bwho may be its national.^ The other three members shall be appointed by
agreement between the parties. In case the parties cannot reach an agreement, the
President of the International Tribunal for the Law of the Sea (ITLOS) is authorized
to make the appointments. If China had participated in the process—at least in the
hearings concerning jurisdiction and admissibility of the claims, it would have been able
to appoint at least one arbitrator, and block the appointment of the arbitrators that it
believed to be unfriendly. Further, in accordance of the Rules of Procedure of the
Tribunal, it could challenge any arbitrator for whom it had justifiable doubts about
his/her impartiality or independence. Unfortunately, as can be seen, in the present case,
all the five arbitrators were appointed by The Philippines and the then ITLOS President,
a rather suspicious Japanese national to the eye of the Chinese government.
China’s non-participation has also led to the loss of the opportunity to present its
own case before the Tribunal. A tribunal’s decision is based on the legal arguments
presented by the parties, supported by convincing interpretations of legal rules coupled
with admissible evidence. In most cases, there could be more than one interpretation for
the same legal rules as well as contradicting evidence about the same facts. To win a
case or minimize the losses, a party must appear before the tribunal to present
arguments and evidence. This is essential at least for counterbalancing the case of the
other party and influencing the deliberation of the tribunal. This loss would look
significantly regrettable in light of the many good legal arguments raised not only in
PRC Position Paper, but also in the lengthy statement of the state-controlled Chinese
Society of International Law. Had China attended the proceedings on jurisdiction, the
Tribunal would have to seriously address the jurisdictional objections raised by China,
many of which, as a matter of fact, were either avoided or not adequately taken up by
the Tribunal in its Award on Jurisdiction and Admissibility.
It is important to stress that, based on established rules and practices in international
law, participation in the hearings on jurisdiction does not necessarily entail acceptance
of the jurisdiction of the relevant international tribunal. If China had lost the case on
jurisdiction issues, it could still withdraw from the case and refuse to join the legal
proceedings on the merits. Even when China was purposely absent in the second stage,
it could still prepare the necessary legal arguments and evidence which are of the same
quality—and quantity, if necessary—as the submissions made by a party who partic-
ipates in the legal process to defend its position. In this sense, the PRC Position Paper
should be celebrated, because it is the first document issued by China to elaborate on its
legal position on this case. It is a landmark document in the sense that it speaks the
language of international law and roots China’s own claims in international law,
indicating that China may have jumped on the bandwagon of using international law to
protect its national interest in the South China Sea. The Tribunal noticed some of the
arguments in China’s Position Paper, but China apparently lost the opportunity to
elaborate on its legal positions.
The Merit Award: The nine-Dash Line, Historic Rights, and Status
of Features
The SCS Merit Award issued on 12 July 2016 marked China’s complete defeat in the
South China Sea Arbitration. This Bfinal and binding^ award,76 unanimously adopted
by the Tribunal, considered historic rights and the nine-dash line, entitlements to
maritime areas and the status of features, lawfulness of Chinese actions, and harm to
the marine environment in the South China Sea, in addition to whether China’s actions
since the commencement of the arbitration had aggravated the dispute between the
Parties. It essentially ruled that China had no legal basis to claim historic rights to the
bulk of the South China Sea based on its nine-dash line claims. This part critically
examines the two major issues considered in the Merit Award, the nine-dash line and
status of features (especially the Taiping island), which directly and substantially affects
China’s interest in the South China Sea.
Nine-Dash Line and Historic Rights
It has been said that China’s claims to sovereign rights and the resources in the South
China Sea are based on the so-called nine-dash line. Known also as the Bdashed line^ in
Chinese literature, it first appeared as an eleven-dash line on an official map published
by the Republic of China government in 1948[33:37].77 Two dashes were removed in
1953, reportedly thanks to Chairman Mao Zedong’s decision to hand over the Gulf of
Tonkin to Vietnam in 1952, resulting in today’s nine-dash line [3].
Curiously, China has never officially clarified the legal basis or nature of its claims
related to the nine-dash line. However, a Note Verbale communicated to the Commis-
sion on the Limits of the Continental Shelf of the United Nations on 7 May 2009, which
includes a map that clearly shows the nine-dash line, stated China’s official position78:
China has indisputable sovereignty over the islands in the South China Sea and
the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant
waters as well as the seabed and subsoil thereof (see attached map). The above
position is consistently held by the Chinese government, and is widely known by
the international community.
76
77
See also [19:193–194].
78
Notes Verbales CML/17/2009 and CML/18/2009 from the Permanent Mission of the People’s Republic of
China, 7 May 2009, available from the UN Division for Ocean Affairs and the Law of the Sea at http://www.
un.org/depts/los/clcs_new/submissions_files/mysvnm33_09/chn_2009re_mys_vnm_e.pdf and http://www.un.
org/depts/los/clcs_new/submissions_files/vnm37_09/chn_2009re_vnm.pdf.
202 Wang J.
Obviously, this official position requires further clarification, which unfortunately has
not been done by the Chinese government. It can be concluded, however, that China’s
position on land claims is clear: all lands within the nine-dash line are thus claimed to be
part of Chinese territory. What is unclear is China’s claims to water. Concepts like Bthe
adjacent waters^ and Bsovereign rights and jurisdiction over the relevant waters^ were
neither patently defined by China nor adequately understood in international law.
The United States Department of State, in a publication systematically analyzing
China’s maritime claims in the South China Sea, offers three possible interpretations
about the nine-dash line. The first interpretation is that the nine-dash line aims only to
indicate the lands over which China claims sovereignty, while the Badjacent waters^
and Bsovereign rights and jurisdiction over the relevant waters^ shall be decided in
accordance with the legal regimes of territorial sea, EEZ and continental shelf under
UNCLOS [30:11]. A second, bolder interpretation is that the nine-dash line is intended
to be a national boundary between China and its neighbors [30:14]. The third interpre-
tation is the nine-dash line is intended to indicate China’s Bhistoric^ claim, the
definition of which depends on the specific context [30:15].
Although, as previously mentioned, China has not clarified its position with respect
to its claims associated with the nine-dash line, reading of the official statements
together with the writing of authors who are close to the Chinese government suggests
that China does not have the intention to treat the line as national boundary. As
observed by Jia Yu, the Deputy Director of the China Institute for Marine Affairs
attached to the State Oceanic Administration [19:198],
Either at the time when the Republic of China government published [the map] with
the dashed lines, or in the years after 1949 when the People’s Republic China
[inherited] and continued the claims based on the dashed line, or when [the Chinese
government] submitted the map with the dashed line to the United Nations to express
China’s objections to the submissions by Vietnam and Malaysia concerning the outer
limits of the continental shelf beyond 200 nautical miles, the Chinese government
has never defined the dashed line as a Bnational boundary^ between China and its
neighboring states, and never viewed the ocean space within the dashed line as
China’s internal waters or territorial waters, and never exercised sovereignty [over the
aforesaid waters] as it does for China’s land territories. The practice of all Chinese
governments in the past has also never treated the dashed line as a national boundary
and exercised [sovereignty] accordingly.
Gao Zhiguo and Jia Bing Bing, two eminent international law scholars in China,
have also observed that [13:108–109],
The nine-dash line … is not intended to assert a historic title of sovereignty over
the sea areas, as enclosed by the lines, beyond what is allowed under international
law. Chinese Note I, of 2009, explains this point clearly. That straight base lines
drawn around the Xisha Island, promulgated by China in June 1996, further
prove that point. The consistency in China’s legislative and administrative prac-
tice is also matched by its maps.
Thus, it is rather clear that the dashed line is not regarded as national boundary, even
by China. But does China accept the first interpretation that the dashed line is merely a
line to embrace all the lands within? The answer is probably a Bno.^ According to Jia
Yu, this interpretation Bwould in essence deny China’s historic rights in the South
China Sea^ because that would make China’s maritime entitlements decided under the
relevant legal regimes of UNCLOS [19:199]. It can then be reasonably concluded that
the nine-dash line represents China’s claims over all the lands within the line, plus
Bhistoric rights within the nine-dash line—under Article 14 of its 1998 law on the EEZ
and the continental shelf—in respect of fishing, navigation, and exploration and
exploitation of resources^ [13:109–110].
The key question then is whether China can claim historic rights beyond those
conferred upon it by UNCLOS. Clearly the Tribunal totally denied China of such
rights. In the Merit Award, the Tribunal examined the history of UNCLOS and
concluded that the Convention was adopted to comprehensively allocate the rights of
states to maritime areas. Thus, BChina’s claim to historic rights to the living and non-
living resources within the ‘nine-dash line’ is incompatible with the Convention to the
extent that it exceeds the limits of China’s maritime zones as provided for in the
Convention^.79
Having decided that China’s historic rights did not go beyond what was permitted
under UNCLOS, the Tribunal still examined the historical record to determine whether
China actually had historic rights in the South China Sea prior to its accession to
UNCLOS. The Tribunal concluded that, although Chinese navigators and fishermen
had historically used the islands in the South China Sea, this use was not exclusive, as
they were also used by people of other countries for the same purposes. Moreover,
since nearly all of the South China Sea formed part of the high seas, China’s own
navigation and trade in the South China Sea, as well as fishing beyond the territorial
sea, represented the exercise of high seas freedoms.80 Further, the Tribunal said it Bis
unable to identify any evidence that would suggest that China historically regulated or
controlled fishing in the South China Sea, beyond the limit of the territorial sea^.81
Indeed, compared with what China has lightly offered to justify its claim to historic
rights, the Tribunal’s analysis of this point looks more powerful and convincing in the
sense that it sharply identified the fundamental weaknesses in China’s argument about
historic rights so far presented. This, however, does not mean that the Tribunal has
destroyed the legal basis of China’s claim to historic rights. On this claim, there are at
least three unsettled issues.
First, the Tribunal’s analysis of China’s claim to historic rights is not adequately
conclusive, as it was not able to take into consideration China’s evidence to support its
claim. The disagreement between China and the Tribunal (and the Philippines, whose
view the Tribunal fully endorsed) is not about the legal test for establishing historic
rights. Chinese literature seems to suggest that it subscribes to the prescribed Belements
of title to historic waters’^ by the International Law Commission in the 1962 Juridical
Regime of Historic Waters including Historic Bays. 82 The disagreement was about
79
80
81
82
See generally [16, 18, 19].
204 Wang J.
whether China had enough evidence to demonstrate B(1) the exercise of authority over
the area by the State claiming the historic right; (2) the continuity of this exercise of
authority; and (3) the attitude of foreign States^ [17:80]. In this regard, China believes it
has acquired historic rights, in various degrees, to the waters and resources in the South
China Sea through at least three means Bin the course of history,^ which are discovery
and use of the lands and resources by Chinese fishermen and navigators, administration
of the region by local government authorities, and acquiescence by other countries.83
China might have ample evidence to support such a claim, but unfortunately none was
presented nor considered by the Tribunal, largely due to China’s own non-appearance
in the proceedings of the arbitration.
Second, conceptually it is hard to say UNCLOS has entirely Bsuperseded any
historic rights or other sovereign rights or jurisdiction in excess of the limits imposed
therein^. 84 It is very clear that UNCLOS, as an international agreement, was never
intended to provide for all the rights of States in an exhaustive way. Arguably, to the
extent historic rights have their basis also in customary international law,85 China may
have a chance to justify its claim under customary international law, provided that it can
present sufficient evidence to establish its historic rights—a task already difficult
enough by itself. And of course, it is still an open question whether such a right, even
if it is based at least in part in customary international law, can undermine the
sovereignty or rights of the coastal states under UNCLOS.
Third, whenever the Tribunal considers the existence of historic rights, it falls back
to the old jurisdictional question: is territorial sovereignty is involved? Obviously, if it
can be found that China’s claim to historic rights contains elements of sovereignty, then
the issue should immediately get out of the purview of the Tribunal. It seems, however,
that the Tribunal considered the historic rights claim, including the elements of the
sovereignty, and in that way, pre-judged the sovereignty factor of China’s claims.
Status of Features Including the Taiping Island
Another fundamental issue decided by the Tribunal, which is considered as the

BTribunal’s most important decision^ [2: para. 89], is the status of features in the South
China Sea and the entitlements to maritime areas that China could potentially claim
pursuant to UNCLOS. It is the Tribunal’s interpretation of Article 121(3) of UNCLOS
that has most severely stricken China’s claimed interest in the South China Sea.
As noted previously, in UNCLOS’s legal regimes, islands, rocks and low-tide
elevations are entitled to different maritime rights. A Bfully entitled island^ generates
vast marine spaces including territorial sea, contiguous zone, exclusive economic zone
and even continental shelf. However, according to Article 121(3) of UNCLOS, BRocks
which cannot sustain human habitation or economic life of their own shall have no
exclusive economic zone or continental shelf.^ Rocks are, of course, still islands
according to Article 121(1) of UNCLOS, but they are only entitled to territorial seas.
83
See [19:201–203] and [16:12–13].
84
85
See e.g. The SCS Jurisdiction Award, para. 407 (stating that traditional fishing rights may exist within the
territorial waters of another State).
The Tribunal ruled, largely along the lines of the submissions by the Philippines, that
Scarborough Shoal (Huangyan Dao), Johnson Reef (Chigua Jiao), Cuarteron Reef
(Huayang Jiao), and Fiery Cross Reef (Yongshu Jiao) are Bhigh-tide features^ (rocks),
and that Subi Reef (Zhubi Jiao), Hughes Reef (Dongmen Jiao), Mischief Reef (Meiji
Jiao) and Second Thomas Shoal (Ren’ai Jiao) were submerged at high tide (low-tide
elevations) in their natural conditions.86 The Tribunal concluded that all of the high-tide
features in the Spratly Islands were Blegally rocks for purpose of Article 121(3) and do
not generate entitlements to an exclusive economic zone or continental shelf^. 87
Therefore, no features occupied or claimed by China, including the Taiping Island
(known as Itu Aba internationally), were entitled to EEZ or continental shelf, according
to the Tribunal.
The Tribunal’s legal reasoning with respect to the distinction between Bfully entitled
islands^ and Brocks^ is not entirely convincing, if not problematic. As provided in
Article 121 of UNCLOS, a Bfully entitled island^ must not only possess the geological
elements of being Ba naturally formed area of land, surrounded by water, which is
above water at high tide^, but also not be a Brock^ which Bcannot sustain human
habitation of economic life of their own^.
The Tribunal interpreted the key terms in Article 121(3) including (a) Brocks,^ (b)
Bcannot,^ (c) Bsustain,^ (d) Bhuman habitation,^ (e) Bor,^ and (f) Beconomic life of their
own^. 88 In the author’s view, the Tribunal’s interpretation of two of the terms looks
problematic, especially when it is applied to the Taiping Island/Itu Aba. The first was
on Bhuman habitation^. The Tribunal suggested that it had to be habitation Bby a group
or community of persons,^89 and offered the following further explanation90:
No precise number of persons is specified in [Article 121], but providing the

basic necessities for a sole individual would not typically fall within the ordinary
understanding of human habitation: humans need company and community over
sustained periods of time.
However, it is not clear what the legal basis is for requiring Ba group or community
of persons^ to establish habitation, as one simply cannot infer any such requirement
from the text of Article 121. However, considering that the Tribunal admitted neither
the Article nor UNCLOS specified Bno precise number of persons,^ the size of the so-
called Bgroup^ or Bcommunity^ does not need to be large. If, clearly, one person does
not make a group or community, will two or a few more do? Assuming it is true that
Bhumans need company and community,^ it is highly possible that even two persons
can form such company or community Bover sustained periods of time.^
A high-tide feature can be a Bfully entitled island^ if it has Beconomic life of their
own^, which is the second concept concerned here. In the view of the Tribunal, this
meant the provision of material resources through local economic activity. 91 Further,
86
SCS Merit Award, paras. 554–640.
87
88
89
90
91
206 Wang J.
the Bof their own^ component clearly required the feature Bmust have the ability to
support an independent economic life, without relying predominantly on the infusion of
outside resources or serving purely as an object for extractive activities, without the
involvement of a local population^. 92 In the words of the Tribunal, Bfor economic
activity to constitute economic life of a feature, the resources around which the
economic activity revolves must be local, not imported, as must be the benefits of
such activity^.93
One reservation has to be made about this interpretation. That is, the Tribunal’s
understanding of Beconomic life of their own^ might be too narrow and restrictive. As a
matter of fact, there are indeed many islands in the world which support an independent
economic life through Brelying predominantly on the infusion of outside resources,^
Singapore and Hong Kong being such examples. The Jan Mayen conciliation offers
another example. 94 Jan Mayen belongs to Norway and was used by Norway for
military and scientific research purposes through a meteorological station, a LORAN
(long-range radio navigation) station, a coastal radio station, etc. BBetween thirty and
forty people live throughout the winter on the eastern coast in the central part of the
island^ which was where the stations and the airport were located.95 The Conciliation
Commission on the Continental Shelf Area between Iceland and Jan Mayen concluded
Jan Mayen Bmust be considered as an island^ 96 under Article 121 of the then Draft
UNCLOS, which the Commission considered to reflect Bthe present status of interna-
tional law^.97 As observed by Tanaka, the Bexample of Jan Mayen seems to imply that
the need for external supply does not deprive a marine formation of the legal status of
an island^ [28:67].
The flaws in the Tribunal’s legal reasoning appear conspicuous when it was applied
to the Taiping Island/Itu Aba. First, on evidence, the Tribunal essentially relied on the
submissions of the Philippines, which in turn almost solely relied on a 1994 scientific
study on BThe Flora of Taipingtao (Itu Aba Island)^ by a Taiwanese scholar, which
concluded that the water, soil and vegetation demonstrated Bthe impossibility of
sustaining human habitation^ on Taiping Island. 98 It chose to ignore the contrary
evidence, like the ample documentary and other evidence submitted in the Amicus
Curiae by the Chinese (Taiwan) Society of International Law [8]. The Amicus Curiae,
citing numerous books, reports, and other forms of empirical or scientific research,
aimed to prove that the Taiping Island not only had a Blongstanding history of human
habitation^ [8: paras. 25–28], but also Bcurrently sustains the habitation of hundreds of
people^ [8: paras. 23–24]. According to the Amicus Curiae, both empirical facts and
scientific studies can establish that the Island has a rich natural supply of fresh water
which Bis easily replenished by precipitation^ and Baverages 1800–2000 mm per year^
[8: para. 29]. It was further presented that the four groundwater wells provided drinking
92
93
SCS Merit Award, p. 500.
94
Report and Recommendations to the Governments of Iceland and Norway of the Conciliation Commission
on the Continental Shelf Area between Iceland and Jan Mayen, 20 I.L.M. 797 (1981) (hereinafter the Jan
Mayen Report).
95
See the Jan Mayen Report, p. 802.
96
The Jan Mayen Report, pp. 803–803.
97
The Jan Mayen Report, p. 803.
98
and cultivating water to 237,000 tons per year [8: para. 30]. The Amicus Curiae also
presented evidence to prove that Bthe soil on Taiping Island has existed for more than a
thousand years, and is capable of supporting indigenous vegetation and agricultural
crops^ [8: paras. 33–34], and the Boriginal and current vegetation of Taiping Island is
capable of sustaining human habitation^ [8: paras. 35–39].
This is not to say that the Tribunal should have instead relied on the Bcontrary
evidence,^ like those offered in Taiwan’s Amicus Curiae. However, the Tribunal either
seemed to be almost totally unconcerned by the contrary evidence, or treated it in a
rather careless way, though it still admitted that Bthe principal high-tide features in the
Spratly Islands are capable of enabling the survival of small groups of people^. 99 In
other words, the Tribunal actually recognized that some features, especially the Taiping
Island/Itu Aba, have the capacity of sustaining human habitation. Still, the Tribunal
concluded that the Spratly features, including the Taiping Island, Bare not capable of
sustaining an economic life of their own within the meaning of Article 121(3).^ 100
Clearly, this is a result of the Tribunal’s narrow and restrictive interpretation of the
concepts of Bhuman habitation^ and Beconomic life of their own^, as well as a logical
error in the Tribunal’s relevant legal reasoning that curiously confused a feature’s
Bcapacity to support^ human habitation with whether it has actually Bsupported^
human habitation.101
Conclusion: Implications on International Law and China
Views are divided as to the role of international law in highly political situations like the
South China Sea disputes. Some commentators treat these disputes as purely geopolit-
ical matters which should be left to power politics or, at least, diplomatic means,102 while
others believe international adjudication is appropriate in a politically sensitive case like
this one [4: 487–492]. The Asian background of this case has added complications to the
disputes. As Simon Chesterman has observed, BAsian states are the least likely of any
regional grouping to be party to most international obligations^ [6:945].
For Bsuccessful arbitration on highly political issues such as cultural issues and
boundary disputes^, Kristen Boon offered three conditions [4:490]:
(i) Consent of the parties,
(ii) The ability of the politicians to sell the process of arbitration to their people,
(iii) Arbitral tribunal’s ability to tactically manage consent.
In essence, the Parties have to agree to participate in the arbitration, the politicians
need to support the arbitration, and arbitrators need to manage the consent of the parties
[4:490]. Seen within this framework, the South China Sea Arbitration is hardly a
successful arbitration. However, one has to take note of the positive and practical
contributions of the case not only to international rule of law but also to promotion of
peaceful settlement of the disputes in the region. First, the arbitration successfully
99
100
101
SCS Merit Award, paras. 618–622.
102
See generally, [20].
208 Wang J.
brought the disputes to the international realm. The international attention drawn by this
case to the South China Sea disputes and the Bmood of legalization of the dispute
settlement^ created by the case have put pressure on the parties concerned, especially
China, to emphasize the importance of using international law to resolve the disputes.
Secondly, the jurisdiction and merit awards have strongly clarified and defined the legal
claims of the parties, and have compelled some parties, especially China, to issue more
statements to clarify its own claims and position on the disputes. In addition, despite the
Chinese government’s seemingly strong condemnation of the SCS awards, the awards
might have helped unlock the diplomatic impasse between China and the Philippines.
After the final award was issued, the Philippines’s newly elected President Rodrigo
Duterte visited China in October 2016. Since then, the relationship between the two
countries has significantly improved. Possibly, China’s legal defeat in the arbitration
has helped it to understand that it should show good will, reasonableness, and a
cooperative stance in its dealings with the small neighbors, at least from the perspective
of maximizing China’s national interest in international relations and geopolitics.
However, one must be cautious about treating the SCS arbitration as such a landmark
case with superb judgments that may set precedents for future disputes. For sure, to the
extent that the awards have defined the claims and clarified certain legal issues, they will
shed light on maritime dispute settlement in the future. But it is also important to
recognize the weaknesses in both the jurisdiction and merit awards. Two such weak-
nesses are notable, as previously analyzed. One is on the sovereignty nature of the
disputes. That is, the Tribunal took on highly political issues which are sovereignty-
related, without gaining the consent of the parties. And the other weakness concerns the
Tribunal’s narrow and restrictive interpretation of Article 121(3) of UNCLOS.
What is the impact of the case on China’s attitude toward international law? Frankly, it
has caused mixed feelings in China. On the one hand, the legal defeat, and the responses
from many members of the international society which urged China to comply with the
awards, have certainly made both the Chinese public and government begin to appreciate
the significance of international law. Although Mr. Dai Bingguo, one of China’s top
diplomats, described the final award as Bnothing but a piece of useless paper^ [9], 103
China’s post-arbitration behavior demonstrated that it has taken the awards to heart.
Otherwise, it would not have mounted a sustained, and somewhat hysteric, legal,
political and diplomatic campaign to discredit the Tribunal and its findings.104
Naturally, the awards have also helped fan nationalism in China, strengthening the
belief of realism and power politics in international relations. From the very beginning,
the SCS arbitration has been depicted in China as a U.S.-led conspiracy to contain
China. It is not difficult for conspiracy theories like this to find audience in China, as
the public in China has a very strong victim mentality with respect to China’s relations
with the international society, especially the Western world. The victim mentality has
led to disbelief in international law, as international law was believed to be used by
Western powers to invade China, extract economic concessions from China, and
occupy territories of China before the PRC was established. Against this background,
103
See also [14].
104
See [32] (a collection of reports and commentaries written by the reporters of the Xinhua News Agency,
China’s state-owned news agency, to criticize and condemn the Tribunal, arbitrators, and awards of the South
China Sea Arbitration).
to the extent that it declared invalid the nine-dash line (and hence China’s historic
rights), and ruled that Taiping Island is no more than a rock, the Bcounterproductive
effect of the award is to stir up Chinese nationalism while undermining moderate voices
represented by professional diplomats.^ as observed by Zhang Feng [34].
In the end, the South China Sea Arbitration may have given China two takeaways:
the appreciation of the importance of using international law, and the understanding that
foreign countries—led by the United States—again are using international law as a
disguise to violate China’s sovereignty. A combination of these two factors, rather than
a serious belief in international rule of law, will strengthen the prevailing attitude of
treating international law as a tool to protect China’s national interest. As noted by
Simon Chesterman, China’s Bembrace of international law arguably continues to be
instrumentalist with regard to both domestic and international policy objectives^
[6:952]. The South China Sea Arbitration can hardly change this attitude, but may still
be a step forward, at least in the sense that it has pushed China to realize that it has to
take international law more seriously.
References
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Wang Jiangyu (SJD & LLM, University of Pennsylvania; MJur, Oxford; MPhil in Laws, Peking University;
LLB, China University of Political Science and Law) is a tenured Associate Professor at the Faculty of Law of
the National University of Singapore. He is an Executive Editor of the Asian Journal of Comparative Law and
Deputy Editor-in-Chief of the Chinese Journal of Comparative Law.

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J OF CHIN POLIT SCI (2017) 22:185–210

Legitimacy, Jurisdiction and Merits in the South

Published online: 18 March 2017

The General Scheme of Dispute Settlement under UNCLOS

As noted previously, the Philippines commenced the arbitration proceedings in January

In light of China’s objection to the Tribunal’s jurisdiction expressed through its

It would not be imprecise to describe China’s response to the above award as a

The Legitimacy of The Tribunal and The Neutrality of The Arbitrators

It is rather unusual in international dispute settlement that a State party to a dispute

The establishment of the Arbitral Tribunal is in fact the result of political

manipulated by him. Moreover, he also exerted his influence on the proceedings

The Jurisdictional Issues

China’s unyielding position of Bnon-participation and no-acceptance^ was predomi-

China’s case, as it repeatedly emphasized, is that it acquired historic rights over

Settlement of the Dispute by Other Means

The 2006 Declaration to Exclude Certain Disputes

Assessment of China’s Position on the Tribunal’s Jurisdiction: What if China

Nine-Dash Line and Historic Rights

Status of Features Including the Taiping Island

Another fundamental issue decided by the Tribunal, which is considered as the

No precise number of persons is specified in [Article 121], but providing the

Conclusion: Implications on International Law and China

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