‘Deliberate Ambiguity’ and the Demise of China’s Claim to Historic Rights in the South China Sea

Abstract

The Award of the Arbitral Tribunal in the Philippines v China case was a resounding victory for the Philippines as well as a bold and potentially landmark decision. The key issue for the Philippines was whether China could lawfully claim historic rights to resources within the nine-dash line on Chinese maps, if such areas are within the exclusive economic zone or on the continental shelf of the Philippines under unclos. In deciding this issue the Tribunal had to address the fact the exact legal basis for China’s claim to historic rights in the South China Sea, and the nature and scope of such claims, was ambiguous. The Tribunal addressed the issue of ambiguity in its award on jurisdiction, and ruled that it could draw inferences from China’s conduct in determining the nature of its claim to historic rights. In its Award on the Merits the Tribunal ruled that unclos allocated rights and jurisdiction to the natural resource in the oceans, and that under unclos, coastal States have sovereign rights to explore and exploit the natural resources in their exclusive economic zone and continental shelf. Consequently, whatever historic rights China claimed to resources in the South China Sea, those rights were extinguished when UNCLOS entered into force insofar as they were a claim to resources that are now in the maritime zone of other States.