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China Has Indisputable Sovereignty over the South China Sea Islands
2016-06-20 16:52

The Philippines distorted in the South China Sea arbitration the United Nations Convention on the Law of the Sea (UNCLOS) by arguing that the low-tide elevations and submerged features are part of the exclusive economic zone and of the continental shelf with the intention of disintegrating China's sovereignty over the Nansha Islands. This claim, however, doesn't accord with history, facts, or international law.

Firstly, the Nansha Islands is an inherent part of China's territory. China's activity in the South China Sea dates back more than 2000 years. China was the first country to discover, name, explore and exploit the South China Sea Islands and the first to have continuously exercised sovereignty and jurisdiction over them. It is recorded in the Treatise on Geography, part of the Book of Han composed by Ban Gu in Eastern Han Dynasty, that Emperor Wu of Han sent envoys to the states on the South China Sea islands, which began keeping records of Chinese navigation in the South China Sea. After their discovery of the South China Sea Islands, the ancient Chinese people called these islands "Zhanghai Qitou", "Jiuru Luozhou", "Shitang", "Changsha", "Qianli Shitang", "Qianli Changsha", "Wanli Shitang", "Wanli Changsha" among other names. Being the first to discover and name the South China Sea Islands entitled China to enjoy sovereignty over them. Though the South China Sea Islands were occupied by France and Japan during World War II, in 1946 the Chinese Government restored the Dongsha, Xisha and Nansha Islands, erected stone tablets on major islands and sent troops to garrison them. In December 1947, China announced the names of the renamed South China Sea Islands and a South China Sea Islands Location Map to clearly specify the scope of China's territories and relevant sea areas. The scope of the Nansha Islands taken over is the same scope as indicated by the aforesaid South China Sea Islands Location Map (4-12° N and 111°30' -117° E) which was drawn by the Ministry of the Interior. China's acts regarding the South China Sea, such as erecting stone tablets and sending troops to garrison the major islands and indicating China's territories and relevant sea areas clearly, completely complied with the principle of effective occupation.

Secondly, the Philippines deliberately ignored the integrity of the Nansha Islands by separating individual islands and reefs from the entirety of the islands. As early as the 1950s, the authority on the law of the sea, C. John Colombos, wrote in general terms about archipelagos that a generally accepted rule seems to be that a group of islands that form an archipelago should be seen as a unity, the breadth of territorial waters should be measured up from the center of the archipelago, and whether or not a group of islands forms an archipelago depends on geographic conditions, or in some cases on grounds of history or time limits.

Thirdly, the exclusive economic zone and continental shelf systems under UNCLOS grant coastal states broad rights; over the continental shelf in particular, coastal states enjoy exclusive sovereign rights. But the granting of these rights is more for coastal states to explore relevant waters and exploit their natural resources, and does not affect any state's sovereignty.

Fourthly, because the continental shelf system was being formed when China recovered its sovereignty over the Nansha Islands, the establishment of China's sovereignty over the islands occurred much earlier than the official establishment of the continental shelf system. The "Presidential Proclamation No. 2667: Policy of the United States with Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf", which U.S. President Truman announced on September 28, 1945, made it clear for the first time that the resources of the continental shelf contiguous to a coastal state belongs to the coastal state. The first United Nations Conference on the Law of the Sea held in 1958 concluded the Convention on the Continental Shelf based on the preparatory work of the International Law Commission. The 1982 UNCLOS provides in greater detail for the continental shelf system. The Philippines cannot deny China's sovereignty over the Nansha Islands on the grounds that the low-tide elevations and submerged features are part of the continental shelf.

Finally, there is no definite legal principle in the international community as to whether a low-tide elevation could be appropriated.. According to Article 38 of the Statute of the International Court of Justice, judicial decisions are not direct source of international law but only serve as subsidiary means for the determination of rules of law. Besides, judicial decisions by the International Court of Justice on whether a low-tide elevation can be possessed are inconsistent and contradictory. The International Court of Justice explicitly stated in its judgment of 2001 for the Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), that "International treaty law is silent on the question whether low-tide elevations can be considered to be ‘territory’. Nor is the Court aware of a uniform and widespread State practice which might have given rise to a customary rule which unequivocally permits or excludes appropriation of low-tide elevations". In its judgment of 2012, however, for the Territorial and Maritime Dispute (Nicaragua v. Colombia), the International Court of Justice stated that "low-tide elevations cannot be appropriated". According to Article 59 of the Statute of the International Court of Justice - "The decision of the Court has no binding force except between the parties and in respect of that particular case", the International Court of Justice's 2012 judgment in Nicaragua v. Colombia concerning low-tide elevations is of no value of reference to the status of the relevant maritime features of the Nanshan Islands.

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