Author: Valentin Koshkin
Keywords: .; «historical rights»; international arbitration; South China Sea; The Spratly Islands (Nansha); the UN Convention on the Law of the Sea
Disputes over the territorial affiliation of the Paracel archipelago and the Nansha (Spratly) archipelago in the South China Sea have been ongoing for decades and have attracted the world’s attention. The conflict involves such states as China, the Philippines, Vietnam and Malaysia. In 2013, the Philippines unilaterally appealed to the Permanent Court of Arbitration at The Hague over several issues regarding a territorial dispute in the South China Sea. In 2016, the International Tribunal, which was created through a mediation of the Permanent Court of Arbitration, ruled that China has no “historical right” to the disputed territories in the South China Sea. The tribunal’s judges also acknowledged that China has no right to develop natural resources or to conduct fishing and other economic activities in this territory, and that construction work organized by China has caused irreparable damage to the coral reefs located there. After the decision was issued, the Chinese government adopted a position of non-acceptance and refused to participate in the hearings. Attempts to justify this model of behavior are being made in the Chinese scientific community. Chinese experts are trying to prove that the decision of international arbitration contains an error of law enforcement and wrongfully denies China’s historical rights. The relationship between the provisions of the 1982 UN Convention on the Law of the Sea and historical rights is examined separately. In Chinese publications, it is emphasized that the position of the arbitral tribunal violates the original meaning of the Convention. Moreover, it is argued that, according to Article 298 of the Convention, the arbitration tribunal does not have jurisdiction over disputes over the delimitation of maritime boundaries in the South China Sea and, accordingly, should not have addressed this issue. Despite the fact that Russia’s approach to the dispute in the South China Sea is expressed in the position of non-intervention and non-acceptance of anyone’s side in maritime disputes according to the author, the Russian Federation as a strong maritime power nevertheless needs to study in detail the arguments of the countries participating in the conflict. Based on the above, it can be argued that consideration of the arguments of Chinese experts may be of interest in the Russian scientific and legal environment. The article contains an overview of China’s official position and the point of view prevailing in Chinese research circles on the issue of the territorial dispute in the South China Sea.
About the author: Valentin Koshkin – Postgraduate student, Department of International Law, Sun Yat-sen University, Guangzhou, China.
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