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Derechos | Equipo Nizkor
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Derechos | Equipo Nizkor
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04Jul16
Arbitration case cannot deplete China's historical rights
Looking into the Philippines' submission at the Arbitral Tribunal on the South China Sea, many confusing concepts aimed at denying China's historical rights have been found. But they only serve to expose the Philippines' ignorance and prejudice.
Example One: Interpreting Out of Context
In its arbitration statement, the Philippines claimed that the United Nations Convention on the Law of the Sea (UNCLOS) has never mentioned historical rights.
The Philippines undoubtedly misinterpreted the content of the convention. In fact, many articles of the UNCLOS recognize the concepts of "historic bays" and "historic waters."
For example, Article 15 of the convention states: "The above provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith."
Some scholars believe that China's historical rights can be established from "historic bays" and "historic waters" in relevant articles of the UNCLOS.
Therefore, the UNCLOS offers strong support for China's stance, but not on the contrary.
Example Two: Ignoring Judicial Precedents
The Philippines claimed that the historical rights mentioned by China had been clearly denied and abolished by the UNCLOS makers, attempting to imply that none of historical rights should be included in the international law.
In fact, however, no rights could come into being instantly and those rights established in history undoubtedly should be respected by the international law.
Several precedents in judicial practices also reinforced the claim for historical rights. The most typical one was the fishery case between Britain and Norway in 1949, which was related to historical rights.
The Norwegian royal family issued a decree in 1935, delimiting Norway's exclusive fishery area in accordance with Norwegian historical tradition, while Britain believed Norway's delimitation violated the international law and filed a law suit with an international court in 1949.
The court accepted the case as both Britain and Norway had agreed to accept the count's jurisdiction. In 1951, the court dismissed Britain's appeal and ruled that the Norwegian royal family's decree remained effective due to historical rights.
In addition, the continental shelf case between Tunisia and Libya, and the Gulf of Fonseca case between Salvador and Honduras, among others, dealt with historical rights.
Abundant judicial precedents have proven that "historical rights" have been a big factor in international judicial practices.
Example Three: Attempting to Mislead Those Confused
In its submission, the Philippines said that China's Nine-Dash line in the South China Sea lacks a link to the history, claiming that China's historical rights were a new proposal it put forward in 2009.
In fact, China was the first country to discover, denominate, develop and control the South China Sea islands. The Chinese people's navigation and trade on the South China Sea and jurisdiction over the area has a history of more than 2,000 years, which provides firm evidence for China's historical rights on the South China Sea.
French scholar Francois Gipouloux said in his book "The Asian Mediterranean" that before Southeast Asia was invaded by Western colonists, trade on the South China Sea was conducted by Chinese oceangoing ships, officials and the ships' crew were Chinese, and China's trade system was guiding the then trade rules on South China Sea.
Since the Tang Dynasty (618-907 AD), China has formed explicit jurisdiction over the South China Sea.
According to Southern Song Dynasty (1127-1279 AD) work Zhu Fan Zhi, the South China Sea was governed by Zhenzhou (of today's Hainan Province) in the Tang Dynasty and by Qiongguan in the Southern Song Dynasty. In the Ming (1368-1644 AD) and Qing (1644-1911 AD) dynasties, South China Sea islands belonged to the Prefecture of Qiongzhou, Guangdong Province.
Through China's governmental and non-governmental promotion, cultivation, defense and maintenance in several dynasties, the South China Sea has become a tunnel, a platform and a network to lead neighboring countries to realize common prosperity in trade and economy.
History cannot be denied and is not allowed to be denied. By whatever legal means or with whatever arguments, China's historical rights are right there. Whether an arbitral award is to be issued or not, history and the rights it offers are indisputable facts.
As an old Chinese saying goes, an unclear mind can never make it clear to others. The Philippines' submission has ignored not only history but also existing judicial cases, which, along with the current arbitration case itself, will become a laughingstock in history.
[Source: Xinhua, Beijing, 04Jul16]
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 | This document has been published on 05Jul16 by the Equipo Nizkor and Derechos Human Rights. In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. |