Justice not served by tribunal’s ruling on South China Sea

The Permanent Court of Arbitration decision on the South China Sea that none of the geographical features in the Spratly archipelago are islands, in accordance with the UN Convention on the Law of the Sea, deprives whoever owns them of any right to claim an exclusive economic zone or a continental shelf. China makes such a claim, of course.

The tribunal’s main argument against the status of the Spratlys as islands is the relative lack of habitation and economic activity on the islands. Therefore, the history of arguments about the basis of title to territory is relevant background to the award, even though the latter is ostensibly not about territorial title.

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The essence of the case for Chinese ownership of the Spratlys has been in fact a very significant and long-standing use of the islands by Chinese fishermen from Hainan ( 海南 ). An extensive British Foreign Office legal opinion of January 1974 to this effect was based on an exhaustive trawl of all records since the 1870s by its research department. There followed a memorandum by the foreign secretary to the British cabinet in June 1974, stating that China had the only legal claim to the Spratlys.

Reliance upon purely economic activity of one’s citizens as a ground for territorial title is an unusual basis for a state to claim sovereignty over the islands. However, the British took that position with respect to the Spratlys. The Law Officers of the Crown had issued two opinions, in 1879 and 1880 respectively, with the second opinion reversing the first, that concluded that licensing economic activity of one’s subjects would be enough without a formal act of annexation. However, no such activity ever followed up and so in 1932 Britain decided that any possible British claim had become extremely weak.

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In 1974, it was noticed that the Chinese activity at the time, in the 1870s, was not considered, probably because China was not then regarded as a full member of the community of civilised states. That view of China was obsolete by the 1930s when China protested on all appropriate occasions, against the French in 1933 and against the Japanese in 1939. There had never been any significant French activity on the Spratlys and anyway they had now abandoned their claim. There was no question of competing Philippine or Vietnamese activity in the British view of the record and claims of these countries were rejected both by Britain and France since the 1950s.