Questioning the timeline of Humanity

Dear All

The conventional  history of humanity considers that  the New Stone Age, and the Agricultural Revolution (between 8000 and 5000 BCE) was the first signs of a “civilized” society appearing on this planet when the  Homo sapiens had the Neolithic Revolution  and domesticated animals for their subsistence beginning in Africa. 

But the timeline of Humanity is questionable and  contentious as there are many  unsolved mysteries arising from Evolutionary bias, racial prejudices, and religious insistence, etc. 

National Geographic informs that  Humans have walked the Earth for 190,000 years, a mere blip in Earth's 4.5-billion-year history.   Since modern humans emerged in the Cenozoic era, this planet has seen an incredible series of changes which include 50 to more than 90 percent of all species on Earth have disappeared as new species evolve to fit ever changing ecological niches, older species fade away in a geological blink of the eye, an extraterrestrial impact is most closely linked to the Cretaceous extinction event. The melt off of ice at around  20,000 years ago had caused  the ocean levels rose of more than 100 metres during the last ice age. Massive floods of lava erupting from the central Atlantic magmatic province about 200 million years ago may explain the Triassic-Jurassic extinction. About 20 percent of all marine families went extinct, as well as most mammal-like creatures, many large amphibians, and all non-dinosaur archosaurs. An asteroid impact is another possible cause of the extinction, though a telltale crater has yet to be found. 

Today,  National Geographic echoes a sixth mass extinction is under way which is due to  human activities such as pollution, land clearing, and overfishing.

http://science.nationalgeographic.com/science/prehistoric-world/mass-extinction/

Several  pseudoarchaeological theories arose and  tries to convince that prehistoric and ancient human societies were aided in their development by intelligent extraterrestrial life, such as Swiss author Erich von Däniken in books  Chariots of the Gods? (1968) and Italian author Peter Kolosimo such as Atlantis, and  Graham Hancock in his Fingerprints of the Gods (1995).  However, pseudoarchaeologists are critiqued that they only  use  "generalized cultural comparisons," taking various artefacts and monuments from one society, and highlighting similarities with those of another to support a conclusion that both had a common source—typically an ancient lost civilisation like Atlantis, Mu, or an extraterrestrial influence.    In this regard,  Stanley Hall with his Tayos Cave system in Ecuador and its legendary golden library has not been proven.  Likewise, the Bosnian Pyramids  claim is considered  a cruel hoax on an unsuspecting public and should have no place in the world of genuine science.

There has been Conferences  to examine pseudoarchaeological beliefs from a variety of academic standpoints, including archaeology, physical anthropology trying to establish  a dialogue  between evolutionary biologists and creationists or between astronomers and astrologers. https://en.m.wikipedia.org/wiki/Pseudoarchaeology#Conferences_and_anthologies

And the Smithsonian Institution eventually endorsed the Egyptian Cave in the Grand Canyon  on display at the Smithsonian Institute at Washington DC -Jun 25, 2013.

Regards

Bill

 There are the submerged cities of Dwarka, the new pyramids found at Giza and the ancient tunnels in Europe, arguing that human civilisation would be more than 20,000 years. 

1.  Dwarka  is rated as one of the seven most ancient cities in India,  it  was said to be the dwelling place of Lord Krishna which is a major Hindu deity  as the greatest warrior who never lost any battle that he fought. According  to Hindu legend the god Krishna built a city which was ultimately destroyed by rising sea levels. Astrophysicist Dr. Narahari Achar, a physicist from the University of Memphis, found a submerged city in the sea near Dwarka. 

Dr. Rao has excavated a large number of Harappan sites including the port city of Lothal in Gujarat and  discovered in the late 1980s the archaeological l structures under the seabed off the coast of modern Dwarka in Gujarat. Now archaeologists and Indian Navy divers are investigating underwater ruins at Dwarka on India's western coast, said to be Krishna's city. Traditional Hindu scholars referencing ancient Hindu scriptures believe the location to be very ancient, originally built many thousands of years ago. 

Since 1983 the Marine Archaeology Unit of the National Institute of Oceanography in India was engaged in the offshore exploration and excavation of the legendary city of Dwaraka. The  strongest archaeological support comes from the structures discovered under the sea-bed off the coast of Dwaraka in Gujarat,  artifacts recovered from this two cities thus far place the city at around 32,000 years old. 

 The City at Dwarka is not an isolated incident. 

Highly Advanced Ancient Underwater City Discovered to be 32,000 Years Old :: The Un-Silent Majority

http://www.unsilentmajoritynews.com/highly-advanced-ancient-underwater-city-discovered-to-be-32000-years-old/

Ancient Explorers | Unearth the Past. Discover the Future.

http://ancientexplorers.com/

 2. Two Ukrainian researchers, Manichev and Parkhomenko , focus on the deteriorated aspect of the body of the Sphinx, have proposed that  the Great Sphinx at Giza is 800,000 years old. Previously,  the  Great Pyramid of Giza on the basis of potassium-argon dating and stratigraphic studies, were found to be only 4830 to 5700 years old according to radiocarbon dating of accompanying charcoal. The debate over when the Giza complex was constructed is still ongoing.

http://www.ancient-code.com/scientists-geological-evidence-shows-the-great-sphinx-is-800000-years-old/

3. Ancient Tunnels in Turkey 

Archaeologists uncovered thousands of Stone Age underground tunnels  stretching across Europe from Scotland to Turkey, perplexing researchers as to their original purpose.  

12,000 year old massive underground tunnels stretch from Scotland to Turkey.

While the reason behind these sophisticated tunnels remains a mystery, many experts believe that this old network was built as a protection against predators and other dangers 12,000 years ago. Some experts believe that these mysterious tunnels were used as modern-day highways, allowing the transition of people and connecting them to distant places across Europe.

'In Bavaria in Germany alone we have found 700 metres of these underground tunnel networks. In Styria in Austria we have found 350 metres,' he said. 'Across Europe there were thousands of them - from the north in Scotland down to the Mediterranean. While some of the tunnels are relatively small- some of them measure over a meter in width, there are other tunnels that have been found with underground chambers and storage areas.

http://www.ancient-code.com/12000-year-old-massive-underground-tunnels-are-real-and-stretch-from-scotland-to-turkey/

Extensive Ancient Underground Networks Discovered Throughout Europe | Ancient Origins

http://www.ancient-origins.net/news-history-archaeology/extensive-ancient-underground-networks-discovered-throughout-europe-00540

Take a look at this video on YouTube:

https://youtu.be/m3TMeKjiQmk

4)  Stanley Hall who passed away some years ago , in 1976  he and a  team of explorers claimed that they have found the legendary golden library and other mysterious treasures in the Tayos Cave system in Ecuador. 

The team did claim to have samples of at least one of the metal books, one golden plate and several small statues that they will be submitting to professional testing, however,  the team has only announced their findings onto a radio show.

The team announced that they accidentally found some hidden tunnels that were obviously dug out artificially sometime in the ancient past while inside one of the main chambers. The team was able to follow one of these tunnels for approximately ½ mile and came upon a large room containing the golden library and various other treasures. Below is a list of what the explorers claimed to have found in this chamber:

1. A library with thousands of metal books.  Each page had symbols and strange writing on them.
2. Individual plates with writing on them and strange symbols that looked to be made of gold.
3. At least several hundred statues of insects, animals and humans spread throughout the large chamber.
4. Lots of metal bars thought to be both gold and/or silver. Also found were various children’s toys and jewelry items made from gold or silver.
5. One large sarcophagus containing one human skeleton decorated with jewels and golden jewelry.
6. The team also found at least three doors that could be more tombs but were sealed completely shut.
As of right now, the team has only announced their findings onto a radio show and no other announcements have been made so the jury is still out as too whether their claims are completely true.
The team did claim to have samples of at least one of the metal books, one golden plate and several small statues that they will be submitting to professional testing so hopefully this will give us answers shortly.

The history of this alleged discovery and legend is haunted by shady characters, but still attracting many interests.

Legendary Metal Library Found in Tayos Cave in Ecuador

http://www.treasurenet.com/forums/inca-treasures/385845-legendary-metal-library-found-tayos-cave-ecuador.html

5. The Bosnian Pyramids  claims is not true 

https://en.m.wikipedia.org/wiki/Bosnian_pyramid_claims

In 2005 Dr. Semir Osmanagić, head of Anthropology at the American University in Bosnia-Herzegovina, travelled to the town of Visoko, northwest of Sarajevo, Bosnia. He   began excavations at the site of the hill – some 220 meters high, and claimed   that it was a full blown pyramid. But a pantheon of archaeologists disagrees,  a number of professional archaeologists from Europe considered that it is   a cruel hoax on an unsuspecting public and should have no place in the world of genuine science.

6. Kincaid' Cave in the Grand Canyon

On April 5, 1909,  an archaeological expedition in the heart of the Grand Canyon funded by the Smithsonian Institute had resulted in the discovery of Egyptian artefacts. This Egyptian Tunnel City was named Kincaids Cave for G.E. Kincaid who first entered the Cave when he was working for S. A. Jordan as a Archaeologist.

The original story goes that the team found an underground network of tunnels, various ancient artefacts, statues and even mummies.  But the story gets weirder when the Smithsonian stated that it had no Kinkaid or Jordan on record. In one enquiry from 2000, the institution replied: “ The Smithsonian’s Department of Anthropology, has searched its files without finding any mention of a Professor Jordan, Kincaid, or a lost Egyptian civilization in Arizona. ” 

The Smithsonian Institute reported on Jan 2014  that the Tunnel is presently on Cliff Wall 395 feet above the present flow of Colorado River in the Grand Canyon. Archaeologist estimate the Man Made Cavern is around 3,000 years old. The Man made Cavern is over Five Hundred feet long and has several cross Tunnels to large Chambers.

This was the lowest level and last Egyptian Tunnel City they built in the Grand Canyon. Since the time that this Egyptian Tunnel City was made, Archaeologist estimate the Colorado River has eroded another 300 feet lower.

Smithsonian Archaeologist have studied the Egyptian Hieroglyphs on the Walls to this Man made Cave and they are identical to the Hieroglyphs for some Kings in Egypt.

It was estimated that about 50,000 Egyptians had inhabited the Grand Canyon at one time. This Shrine was identified as a Shrine for Seteprene - King Akhenaten’s Son that began his Rule in Saqqara Egypt in 1336 BC but only lasted 10 Years 

Smithsonian Institution | CNY Artifact Recovery

https://cnyartifactrecovery.wordpress.com/tag/smithsonian-institution/

Our hiking in Switzerland

Our hiking in Switzerland
In Sept.2016, we Joined Peter Look's Swiss hiking group ( with appreciation) from 30/8 to 22/9, hiking and touring around  Montreux, Interlaken, and  Grindelwald. While we only see the Canton of Vaud, Valais and Bern in the mid portion; the main group took 8 weeks to cover also Geneva, 
Chamonix to view Mont Blanc in the south/west, also Matterhorn  and  Zermatt further south to feel the  Glacier. 
We all enjoyed and appreciated the deep valleys, gorges, glaciers and mountains. 
Notes of my  hiking tour are enclosed below. 
Regards 
Bill

The Swiss turned  a vision into reality by starting  the Construction of the Jungfrau railway at 1896, 
built into the Eiger and Mönch mountains; and not completed  until 1912. We visited the Jungfrau Railway - A Pioneering Work - YouTube
https://m.youtube.com/watch?v=K7JFlTkZbfA.
The Jungfrau railway station is at 3,454 m, the highest in Europe and and is close to the summits of the Eiger, Jungfrau and . A complex of tunnels connects the railway station to the Top of Europe building, also to the summit of the Sphinx and viewing platforms, with views over the Aletsch Glacier.
Switzerland is a mountainous Central European country, home to numerous lakes, villages and the high peaks of the Alps. Its cities contain medieval quarters, with numerous landmarks , also known for its ski resorts and hiking trails。While the mountain peakswere once difficult to access, the Swiss makes it accessible by trains, cable cars and helicopters with splendid technology and detailing. 
Switzerland is home to the majority of the 4000m peaks in the European Alps. It is surrounded by mountains, with  24 mountains are above 4000 m, 64 above 3500 m, 208 above 3000 m. The highest of all being Mont Blanc (4807M) that lies on the French-Italian border.
Switzerland is known for many things: reliability, high quality service, hospitality, punctuality and precision. That preciseness extends to how the Swiss define their highest mountain. For a mountain to be known as Switzerland’s highest mountain the criterion used is that the mountain must be entirely within Switzerland’s borders. Monte Rosa straddles the Swiss/Italian border  and therefore is disqualified! Switzerland’s highest mountain is therefore the Dom (4,545 m ) summit, it is the third highest mountain in the Alps and the second highest  in Switzerland  and it is entirely Swiss. 

Switzerland was founded in 1291, and a population of about 8 million, with 26 cantons. Mountains are part of the identity of Switzerland. The Alps and their foothills cover 2/3 of the country, with the main range- and its 48 peaks forming Europe's watershed. The mountains have become a focus for visitors, who are drawn by the peace, fresh air, clean water, breathtaking landscapes, and the natural affinity for climbing and skiing. 
Montreux, a municipality  in the canton of Vaud in Switzerland,  the French- speaking portion of Switzerland, a population of  nearly 90,000 in the agglomeration as of  2014.   It was in the Roman road from Italy over the Simplon Pass.   Under Bernese rule (1536–1798), it belonged to the bailiwick of Chillon. The Reformation made the region around Montreux and Vevey an attractive haven for Huguenots from Italy, who brought their artisanal skills and set up workshops and businesses.  In 1798, Napoleon liberated the region from the Bernese. 
Starting in the 19th Century there were three independent municipalities, each municipality had its own taxes and a mayor. During the Thirty Years' War, Switzerland was a relative "oasis of peace and prosperity" in war-torn Europe. Switzerland's emergence as one of the most prosperous nations in Europe—the "Swiss miracle". Switzerland maintained multicultural heritage, strong sense of national identity, and long tradition of direct democracy and civil liberties. In 1930s, The Swiss press vigorously criticized the Third Reich, often infuriating German leaders. Switzerland was an important base for espionage by both sides in the conflict and often mediated communications between the Axis and Allied powers.
Switzerland's most important exports during the war were precision machine tools, watches, jewel bearings (used in bombsights), electricity, and dairy products. During World War Two, the Swiss  franc was  the only remaining major freely convertible currency in the world, and both the Allies and the Germans sold large amounts of gold to the Swiss National Bank. Between 1940 and 1945, the German Reichsbank sold 1.3 billion francs worth of gold to Swiss Banks in exchange for Swiss francs and other foreign currency.
During World War II, Germany considered invading, but never attacked. Switzerland remained independent and neutral through a combination of military deterrence, economic concessions to Germany, and good fortune as larger events during the war delayed an invasion. In 1963, Switzerland joined the Council of Europe. Switzerland's role in many United Nations and international organizations helped to mitigate the country's concern for neutrality. In 2002, Switzerland voters gave 55% of their vote in favour of the UN and joined the United Nations. This followed decades of debate and its previous rejection of membership in 1986 by a 3-1 popular vote.
Refugee issues in Switzerland is not that serious than other EU countries as it has the high mountains surrounding the boundaries which minimises the influx of refugees. 

Notes on Our Trip 2016
31 Aug - In Montreux, we take train to  Rochers de Naye  at 2042 m, site seeing then afternoon walk to Gouge du Chauderon. 
1 Sep we take train to Gstaad, in Vaud; then bus to Col du Pillon, thenchairlift to Peak Walk by Tissot - Glacier 3000.
2 Sep  8:30 take bus 201 to Chateau Chillon. Castle to 11 am. Then to Veytauxstation to St Saphorin. After lunch, vineyard walk. Afternoon visited Chaplin Musee at Vevey. 
3 Sep, take Golden Pass;  from Montreux to Kandersteg ;Stayed at Hotel Blumlisalp ; 
4 Sep - hiking at Leukerbad; ,  take  cable car  at  Sunnbüel  (1,934 m),  walk Gemmi Pass at 2270 m for 10 km; stunning views.
5 Sep. Rainy, change plan; take train to Bern, see Clocktower, city tour, Einstein place; then train to Thun to see the city. 
 6 Sep. take train from Kandersteg to Spiez, then Grindelwald; 
2 holiday apartments Monica + 4 ladies; we go by Bus 123; 11 rooms; Then We stayed in Grindelwald  (6/Sep - 13/Sep), 
7/9 - 9:47 train to Kleine Scheidegg （2061），then  Visit Jungfraujoch  (3454m) by train from Grindelwald (1034m). 
The Jungfrau Railway - A Pioneering Work - YouTube
https://m.youtube.com/watch?v=K7JFlTkZbfA
8/9 ---9.00 am train station.  Take 9.17 train  to Kleine Scheidegg station (2061) - Eigergletscher station (2320) to see Eigergletscher Glacier.  then continue walk down to Alpiglen station (1616m). Walk from Kleine Scheidegg, then walk down to Alpiglen station. 
9 Sep. take cable car to Grindelwald First(2168); Walk Cliff Walk;  then to lake Bachalpsee (2265), Lunch time; - see Oberammergau Gletscher by bus to Hotel Wetterhorn, then walk to Cable car at Pfingstegg. 
10/9 Rainy;  8.47 am to Grund, then cable car to Mannlichen (2230), to peak Tschuggen (2520) 4.4 km, then walk to  Kleine Scheidegg （2061), then take train , afternoon visit Gletscher Schlucht  Glacier Cannon - the gorge cave is located at where the glacier used to be, even continued another 500 metres 150 years ago.   https://m.youtube.com/watch?v=LPQVKs-d2lI
11/9  8.45 am  take bus no. 61 and cable car to Bussalp (1792)  then walk 15.5 km; to Grosse Scheidegg;
12/9  Interlaken Lake tour;  
13/9   9.49 am at Rail Station, To Wengen 4 days.Holiday apartment, 
14/9 8.45 am at Wengen Rail station for 9.03 am  to Lauterbrunnen, then take bus To Schilthornbahn, then take ecable car to  Burren, Then Schilthorn  Back at 12,   the Schilthorn is a 2,970 metre high summit of the Bernese Alps in Switzerland, it overlooks the valley of Lauterbrunnen in the Bernese Oberland, and is the highest mountain in the range lying north of the Sefinenfurgge Pass. Stunning touring infrastructures attracting tourists all year round, despite its emphasis of  the 1969 James Bond movie.
15/9 8.45 am at Wengen Rail station;  for 9.03 am  to Lauterbrunnen, then take bus To then Grutschalp  station; Schilthornbahn, planned to take cable car to  Murren, 6.30 pm buffet dinner together at Gary's Hotel. ( Sue missed the group; I walked to Mirren station; then Winteregg , then to Lauterbrunnen, then to Wengen, nice walk. ) 
八月十五是中秋，歐洲山川眾同游，電訉手信傳天下，足下心思份外明。
16/9  see Cattle show.  Then 1 pm. Take train to Mannlichen , then route 34, dinner 7 pm 
17/9. 10 am at station. Interlaken  City Hotel at 11.56 am. Afternoon cable car to Harder Klum.  Bus 324 & 325 
18/9   Interlaken - City Hotel Bus 105 to Wilderswil , then train  50 min. to Schynige Platte(1967);   walk along the  Alpine Garden which is a botanical garden located at an altitude of about 2,000 metres, near the summit of the Schynige Platte mountain in the Bernese Oberland region of Switzerland; enjoy the Alpine horn used by mountain dwellers in Switzerland ; 
19 Sep checkouut before 9 :45. Take train to Brienz (566) at 10:54.  to hotel then Take train to Rothorn ( 2266),  at 14.58  hr. , then cable car to Rothorn Kulm, rainy and misty; cancel hiking;  Back at 5.40 pm 
20 Sep (Tue) 9.15 am take bus to Ballengberg , Take bus 151 to museum - Swiss Open Air museum. 12.10 pm take bus; afternoon  1.25pmat Station  to Gough,  Aare Schlucht  in Meiringen , see River Aare  and waterfall; 
21/9   9.am take train then cable car to Rothorn Kulm, Sightseeing from Brienz (city tour); see Jobin Living Museum (woodcarve)
22 Sep. leaving to Madrid, Spain. 

Best Regards


Bill

Philippines v China in the South China Sea 2016 : some limitations of the Arbitration under UNCLOS

Dear all
Settlement  of disputes involving interpretation and application of the UNCLOS  is provided in  Part XV of the 1982 Convention. It asks State Parties to settle any disputes between them, by “peaceful means".  States are basically free to choose the procedural means to settle as in Article 287  "at any time", the parties are obliged under article 283 to “exchange views”.
I like to discuss the followings regarding to Philippine's choice :


1. Philippines choice of Arbitration  is arbitrary.
The Philippines took the view that “UNCLOS supersedes and nullifies any ‘historic rights’ that may have existed prior to the Convention”, and thus requested the Tribunal in terms of its Submissions 1 and 2 to declare that China is not entitled to claim rights “beyond those permitted” by the Convention.57 It is of the view that “the Philippines’ Submissions 3, 4, 6, and 7 reflect a dispute concerning the status of the maritime features and the source of maritime entitlements in the South China Sea”.58
China considered The South China Sea as  a contiguous zone together with the sovereignty of the Islands/ Rock, arguing that according  to international law, the entity that enjoys maritime entitlements is the State that owns maritime features, rather than the maritime features themselves.

Some precedence of disputes are noted here , the Tribunal in the 2006 arbitral award in Barbados v. Trinidad and Tobagofound that negotiations related to the delimitation of the exclusive economic zone and the continental shelf over the course of roughly 25 years that failed to result in an agreement between the States   ;  in the  maritime boundary delimitation in the Bay of Bengal between Bangladesh and India, the parties were engaged in negotiations for nearly 40 years before the matter got resolved through arbitration. Under the circumstances, one would think it is not only open but would have been appropriate for the Tribunal to have insisted that the Parties actually engage in negotiations over the proper subject matter of the dispute including the various Submissions made by the Philippines, even if it felt that there is no immediate bar for exercising its jurisdiction.42

 It is apt, in this connection, to recall the observation of the International Court of Justice in the North Sea Continental Shelf Cases (1969). In that landmark case, the Court noted that:
“the parties are under an obligation to enter into negotiations with a view to arriving at an agreement, and not merely to go through a formal process of negotiation as a sort of prior condition for the automatic application of a certain method of delimitation in the absence of agreement; they are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modification of it […] 45

The  arguments of the Philippines on jurisdiction turn on two essential assumptions. One that holds that none of the 750 maritime features in the Scarborough Shoal and the Spratly features are capable of “generating an EEZ and continental shelf entitlement”, suggesting thereby that they are “rocks” and low tide elevations or other insular features not amounting to land or islands, capable of appropriation by way of assertion of “historic rights”.62 The other assumption is that Philippines is entitled to 200 mile EEZ and continental shelf and most of these features fall within its EEZ or the continental shelf which do not have any potential overlap with the true maritime entitlements of China under the same UNCLOS.  Both assumptions appears unrealistic in reality.

The South China Sea Arbitration (The Philippines v. China): Assessment of the Award on Jurisdiction and Admissibility
http://chinesejil.oxfordjournals.org/content/early/2016/06/21/chinesejil.jmw019.full


2. Tribunal has not proved  its authority on additional meaning of island / Rock under Article 121

PCA has gone through the details of the numerous reefs and has differentiated the   High and low tide feature  for the purposes of Article 121. PCA  took the maritime entitlements as a common rights of all States and not a sovereignty issue which would be correct in the public sea with no sovereignty argument.  While PCA  accepts that the travaux préparatoires of Article 121( 3) are an imperfect guide in interpreting the meaning of that Article, PCA has added meaning to rocks/ island and that is different from the ordinary meaning but have not proved its validity in law.

It is noted that what became Article 121(3) of the Convention had been a compromise of  opinions of different States, as such PCA judgement is in itself subjective to the Philippines'  request and is difficult to serve as a  precedent which is a principle or rule established for a court or other tribunal when deciding subsequent cases of the UNCLOS.

PCA' s interpretation of islands/ Rock is therefore an opinion which may not be compatible to the issues. It is then a direct interference of sovereignty and It's position not to  "first decide questions of sovereignty " would be  arbitrary and  outside its jurisdiction.

China believed that each maritime entitlement is explicitly tied to the State that it belongs to. In its provisions on territorial sea, contiguous zone, exclusive economic zone, and continental shelf, the UNCLOS explicitly grants the maritime entitlements to the “coastal State” of relevant maritime zones in question. It is meaningless to separate from State sovereignty ( paragraph  479 ).

It is further noted in 538 that  "repeated attempts during the Conference to define or categorise islands or rocks by reference to size were all rejected. These included proposals to include “size” on a list of “relevant factors”;579  proposals that made distinctions based on whether the surface area of a feature. In this respect, the representative of United Kingdom recalled that “there were large islands which were largely or completely uninhabited and small ones with dense populations which depend heavily upon the sea.”583 Representatives of small island States, such as Micronesia, Fiji, Tonga, and Western Samoa, also argued that it was inequitable to deprive features of their maritime entitlements on the basis of size.584
 PCA has imposed criteria over the feature itself sustain human habitation or economic life , such as  " possess an economic life of its own",  And in 547  "clearly excludes a dependence on external supply" would be subjective, argumentative, and depending on many different factors such as population, need and purpose of the human habitation. PCA's assessment may therefore be subjective and incomplete.
( Paragraph 453, 493) In an explanatory note to its proposal, China promised the general obligation of good faith in Article 300 of the Convention, agreed to take  into account the overall interests of the international community, and  not to  encroach upon the Area as the common heritage of mankind.

During the 15th Session of the International Seabed Authority in June 2009, China raised the issue of rocks under Article 121(3) in the context of particular continental shelf submissions and “argued that the International Seabed Authority was the right forum to discuss matter since it  had the mandate to protect the common heritage of mankind.” ( Paragraph 456)

The views of some States against special distinction of a coastal features over the provision that became Article 121(3) which took place during the Second Session of the Third UN Conference in Caracas in 1974 ;
"Some States opposed the introduction of special distinctions because they believed it was a “practical impossibility” to arrive at a workable formula.559 The representative of the United Kingdom pointed out various practical problems with distinguishing entitlements based on the size, population, or remoteness or geographical proximity of a feature in relation to the coastal or other States.560 The representative of Mexico agreed it would be “difficult, if not impossible,” to draft specific regulations to cover the “immense diversity of island situations” and therefore suggested that the “basic norm must reflect . . . that the marine space of an island must be measured in accordance with the same provisions as were applicable to other land territory. However, exceptions based on principles of equity could be accepted.”561"


 Award of Philippines v. China case by the  Permanent Court of Arbitration (PCA) at The Hague on July 12, 2016.
https://pca-cpa.org/wp-content/uploads/sites/175/2016/07/PH-CN-20160712-Award.pdf

3. On the Status of Itu Aba, Taiping Dao [Itu Aba],

The  Tribunal has taken a passive and negative view "that significant cultivation would be difficult beyond the larger and more vegetated features of Itu Aba and Thitu".  PCA  also decided that human habitation is just temporary, even for extended periods. In this instance, PCA verdict  ( pages 251 to 254 of the Award)  is harsh  and disregard the long history of Chinese cultural and developmental activities, its decision appears to be political than factual.

In this regard, THE CHINESE (TAIWAN) SOCIETY OF INTERNATIONAL LAW  has described the current status of Taiping Island; explains why Taiping Island is an island within the meaning of Article 121(1) of the UNCLOS; And can sustain human habitation and economic life of its own. Tai Ping currently sustains the habitation of hundreds of people; has a longstanding history of human habitation;  has an abundant natural supply of fresh water; the island has existed for more than a thousand years, and is capable of supporting indigenous vegetation and agricultural crops.

On the Law of the sea on the issue of the feat... - Embassy of the Republic of China (Taiwan) in the Kingdom of Swaziland 駐史瓦濟蘭大使館
http://web.roc-taiwan.org/sz_en/post/2164.html


(c) China’s Position on the Status of Itu Aba, Taiping Dao [Itu Aba]

China and  Taiwan Authority’s statements “stressing that Taiping Dao [Itu Aba] meets the definition of island according to UNCLOS and is therefore eligible for possessing exclusive economic zone, continental shelf and other maritime rights and interests.” China’s remarks:

The Nansha Islands including Taiping Dao have been China’s territory since ancient times. Chinese people have long been living and working there continuously. China takes the Nansha Islands as a whole when claiming maritime rights and interests, and Chinese people across the Strait all have the responsibility to safeguard the property handed down from our ancestors. China is firmly against attempts of the Philippines to unilaterally deny China’s territorial sovereignty and maritime rights and interests in the South China Sea through arbitration. 510


 In paragraph 595.  A 1947 Chinese study discusses two types of soil on Itu Aba and concludes that the more rich is “lush with morning glories; the coconut and banana trees are doing well, but not many have been planted; the castor oil plant grows very well and is unusually prosperous.”635 The same study notes that “approximately 250 meters to the east of the radio station and slightly to the north, in the Barbados nut shrubs, there is a small vegetable patch of only slightly over 2 mu [1,333 square metres]; the vegetables are growing decently but there is pest damage.”636

 The Tribunal accepts the point that the capacity for such cultivation would be limited and that agriculture on Itu Aba would not suffice, on its own, to support a sizable population, as in 596.  For the Tribunal, the criterion of human habitation is not met by the temporary inhabitation of the Spratly Islands by fishermen, even for extended periods.

A few points about the Arbitration of Philippines v. China on South China Sea

Dear All,
I  just start reading the Philippines v. China case by the  Permanent Court of Arbitration (PCA) at The Hague on July 12, 2016.   At this stage, I think the PCA's additional definition of Article121 Regime of islands  is a direct interference on sovereignty and as such would be outside its jurisdiction. However, court proceedings is still a peaceful means, fairness needs to be appreciated and exercised by all parties.

International laws intends to govern fairly the conducts of the States, its key principles are to consider traditional notions of sovereignty, consent, and positivism.
The Preamble of  the UNCLOS states " with due regard for the sovereignty of all States, a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans......." Article 15  also spells out the importance of historic title or other special circumstances and asks for mutual agreement of the two countries. Similar consideration are shown  on Delimitation of the exclusive economic zone in Article74,  Delimitation of the continental shelf in Article83.

I would like to make notes of the followings, to share.
1.  The Permanent Court of Arbitration (PCA) is an intergovernmental organization located at The Hague in the Netherlands. The PCA is not a court "in the traditional sense", but rather a bureaucracy that provide services of arbitral tribunal to resolve disputes between member states, international organizations, or private parties arising out of international agreements.[2][3] The cases span a range of legal issues involving territorial and maritime boundaries, sovereignty, human rights, international investment, and international and regional trade. The PCA is not a United Nations agency, but a separate organization comprising 119 member states.[4][5][6]

Permanent Court of Arbitration - Wikipedia, the free encyclopedia
https://en.m.wikipedia.org/wiki/Permanent_Court_of_Arbitration

The United Nations says it has no position regarding either legal merits or procedural merits of the case. [153][154] The UN's International Court of Justice says it has no involvement in the case either.[155]

2. CHINA REFUSES TO ACKNOWLEDGE ARBITRAL AUTHORITY
China issues a Note Verbale stating that “it does not accept the arbitration initiated by the Philippines” and therefore will not participate in the proceedings;  August 1, 2013.
Deeming the case as a political farce played in the name of law by Manila, China has repeatedly reiterated its stance of non-acceptance and non-participation, and still advocates for a settlement to the dispute through negotiations. China claimed that by mid-June, the number of countries that expressed support for China’s stance had risen to 60, and is still growing.
China considers that by filing the arbitration case, the Philippines has shut the door to negotiations for dispute settlement, and has breached the solemn pledges it once made. In the past 20 years, the Philippines reached and signed at least six statements and agreements with China on peaceful settlement of the South China Sea disputes through negotiations.
http://www.chinausfocus.com/foreign-policy/why-china-refuses-to-accept-arbitration-filed-by-the-philippines/

3. US RELEASES "LIMITS IN THE SEAS" REPORT in December 2014
The United States Department of State issues a Limits in the Seas report  on China’s Nine-Dash Line claim.
In the report, the State Department examines three different possible rationales for China’s Nine-Dash Line claim and examines the legality of each under UNCLOS and customary international law. In its examination of the legality of a historic waters claim, the report notes that numerous claimants in the South China Sea participate in activities that demonstrate that there is not an “effective” or “continuous exercise” of Chinese sovereignty in the region.

https://assets.documentcloud.org/documents/1376464/us-limits-in-the-seas-dos-no143-china-in-scs-12.pdf

4. In December 2014, The PRC’s Ministry of Foreign Affairs issues a position paper on the arbitration case. In the document, China reiterates comments made in the Note Verbale in February 2013 by outlining its arguments for why the case does not fall within the scope of UNCLOS’s compulsory dispute mechanism. The paper argues that the arbitration ultimately deals with sovereignty over disputed islands, a claim which the Philippines claims is contradicted by their initial Notification and Statement of Claim. China states that its own sovereignty over the maritime features in question has never been determined by an international body, so the Arbitral Tribunal, which is unable to rule on issues of sovereignty, cannot determine the extent of China’s maritime rights. China refuses to comment on whether or not some of the disputed features are indeed low-tide elevations, even though these features figure prominently in the Philippines’ case. China also argues that by signing the 2002 ASEAN-China Declaration of Conduct for Parties in the South China Sea, the Philippines agreed that bilateral negotiations were the only acceptable means of resolving such disputes.


5. PCA's Further definition  on Island and rock.
UNCLOS PART VIII. REGIME OF ISLAND,  Article121. Regime of islands
1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide.
2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory.
3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.

PCA's Interpretation of Article 121(3)

Paragraph 487, p208,
487. The Tribunal considers that the ordinary meaning of “sustain” has three components. The first is the concept of the support and provision of essentials. The second is a temporal concept: the support and provision must be over a period of time and not one-off or short-lived. The third is a qualitative concept, entailing at least a minimal “proper standard”. Thus, in connection with sustaining human habitation, to “sustain” means to provide that which is necessary to keep humans alive and healthy over a continuous period of time, according to a proper standard. In connection with an economic life, to “sustain” means to provide that which is necessary not just to commence, but also to continue, an activity over a period of time in a way that remains viable on an ongoing basis. 
489. In the Tribunal’s view, the use in Article 121(3) of the term “habitation” includes a qualitative element that is reflected particularly in the notions of settlement and residence that are inherent in that term. The mere presence of a small number of persons on a feature does not constitute permanent or habitual residence there and does not equate to habitation. Rather, the term habitation implies a non-transient presence of persons who have chosen to stay and reside on the feature in a settled manner. Human habitation would thus require all of the elements necessary to keep people alive on the feature, but would also require conditions sufficiently conducive to human life and livelihood for people to inhabit, rather than merely survive on, the feature.

6. Disputes heard. The case submitted by the Philippines to the International Tribunal on the Law of the Sea (ITLOS) concerns eight maritime features that are currently under the control of China.
The first four are low tide elevations that are completely submerged: Mischief Reef, which is 130 nm from Palawan, Kennan Reef (180 nm), Gaven Reef (205 nm) and Subi Reef (230nm). The other four are rocks or reefs that are, at most, entitled to only 12 nm. These are Scarborough shoal, 120 nm from Luzon, Johnson reef 180 (nm from Palawan), Cuarteron reef (240nm from Palawan) and Fiery Cross reef (255 nm from Palawan).

Taiping Island, the largest of the Spratly Islands in the South China Sea, has an area of 46 hectares and the Republic of China in Taiwan stations a Cost Guard garrison there. It has a dock being enlarged to berth a 3,000-ton Cost Guard cutter, an airport that accommodates C-130 cargo planes, a weather station, a park and a temple.

Scholars comments on the Role of the arbitral tribunal
* Legal scholar Anthony Carty of University of Hong Kong states in a published book that the case has been criticized and the arbitration tribinal now faces a claim which is not justiciable.[75]
* Chinese Society of International Law, explains in a published report that the Award for the case is completely erroneous. It's against the principle of international law.[5]
* Abdul G. Koroma, former judge of the International Court of Justice, states that a tribunal is not allowed to pass judgement on a territorial and boundary dispute since a tribunal doesn't have competence nor power to judge such matter.[76]
* Wu Shicun, president and senior research fellow of the National Institute for South China Sea Studies, says that China’s claims are based on historic evidence. Philippines' occupation of South China Sea islands is illegal. The arbitration is against international law, and the only way for a peaceful resolution is to respect the commitment to negotiations.[77]
* Stefan Talmon, director of the Institute of Public International Law at the University of Bonn, states that the Permanent Court of Arbitration does not have jurisdiction over territorial issues which are governed by customary international law, not UNCLOS.[78]
* Antonios Tzanakopoulos, associate professor of public international law at the University of Oxford, states in his published paper that the dispute of the case is obviously about sovereignty and maritime delimitation. Sovereignty and maritime delimitation are beyond the stipulation of the UNCLOS.[79][80]
* Tom Zwart, Professor of Law, Utrecht University, and director of the Cross-Cultural Human Rights Centre, states that the case breaks down the culture of harmony in Asia. To bring people together, tea should be offered, not a sword. In Asia, the award will be considered as the fruit of a poisonous tree. The case has so many actors and can affect many interests, justice can never be rendered, the dispute should not be handled by a judicial tribunal. The United States should be prevented from getting involved because it is not a direct stakeholder of this issue.[81][82]
* Australian international lawyers Rothwell[who?] and Stephens[who?] wrote in a published book that “[t]he Part XV dispute settlement mechanisms ... do not have jurisdiction over disputes arising under general international law”[5]
China's nine-dashed line
* Kuen-Chen Fu, dean of South China Sea Institute, Xiamen University, chief editor of China Oceans Law Review, states that in contract, a gesture like the nine-dashed line does not constitute an offer. China demarcated the u-shaped line with the help of the United States legal office in 1947. Countries including the Philippines and the United States were acknowledged the existence of the nine-dashed line. The US requested permission to visit the Spratly Islands in 1960.[21]
* Ted L. McDorman, professor at the Faculty of Law, University of Victoria, states in a published book that historic waters are not regulated under UNCLOS. The ICJ in the 1982 Tunisia/Libya case clearly stated that historic rights of waters are governed by customary international law, not UNCLOS.[84]
* John Norton Moore, director of the Center for National Security Law and the Center for Oceans Law and Policy, said that the China's nine-dash line claim is illegal and has no basis in the UNCLOS.[85] He also asserted that the nine-dashed line is not in China's interest, saying: "“If others were to do the same thing around the world, that China has done in the nine-dash line, it would be extremely harmful to the interests of China around the world.”[86]
* Wu Shicun, president and senior research fellow of the National Institute for South China Sea Studies, stated that the China's nine-dash line came almost half a century ahead of the UNCLOS, there is no reason to ask the nine-dash line to conform to a later convention. The non-retroactivity is a basic principle of international law, the existing facts of the past cannot be overwritten [clarification needed] by today's law.[87]
Claims by the Philippines
* Heydarian wrote that the country is "engaged in a crucial effort to ensure all claimant states align their claims in accordance to prevailing international legal regimes," but also noted that "the Aquino administration may have placed too much emphasis on its inherently uncertain lawfare at the expense of much-needed bilateral dialogue with its powerful neighbor, which seems determined to snub and defy the ongoing hearing at The Hague at all costs."[88]
* Zou Keyuan, Harris Professor of International Law at the Lancashire Law School of the University of Central Lancashire, United Kingdom, states in his published book that possible EEZ of the Spratly Archipelago is ignored in the Philippines' unilateral EEZ claim. Sovereignty over land territory always controls maritime jurisdiction. The Philippine argument of EEZ in the case may be an effort to muddy the juridical water and to try gain some international support for its weak sovereignty claim.[89]
* Kuan-Hsiung Wang, a professor at the Graduate Institute of Political Science, National Taiwan Normal University, has characterized the claims by the Philippines as "Dubious", opining that the Philippines is undermining efforts to resolve disputes and promote stability.[90]
* ce?]
Philippines v. China - Wikipedia, the free encyclopedia
https://en.m.wikipedia.org/wiki/Philippines_v._China

Manila made  15 submissions to PCA tribunal,  in particular whether Scarborough Shoal and low-tide areas like Mischief Reef can be considered islands. PCA tribunal set aside seven pointed claims mainly accusing Beijing of acting unlawfully. On 29 October 2015, the PCA tribunal ruled that it had the power to hear the case.
 On 19 February 2013, China officially refused to participate in the arbitration because, according to China, its 2006 declaration under article 298[6] covers the disputes brought by the Philippines and that this case concerns sovereignty, thus it deems the arbitral tribunal formed for the case has no jurisdiction over the issue.[7]
On 12 July 2016, the tribunal ruled in favor of the Philippines against China over territorial disputes in the South China Sea;[11][12] in its major ruling, the tribunal ruled that China has "no historical rights" based on the "nine-dash line" map.[11][12] China has rejected the ruling, as have Taiwan.[13][14]
The United Nations holds no position on the case, and the International Court of Justice has had no involvement.

Philippines v. China - Wikipedia, the free encyclopedia
https://en.m.wikipedia.org/wiki Philippines_v._China


UNITED NATIONS CONVENTION ON THE LAW OF THE SEA
AGREEMENT RELATING TO THE IMPLEMENTATION OF
PART XI OF THE CONVENTION
UNCLOS and Agreement on Part XI - Preamble and frame index
http://www.un.org/Depts/los/convention_agreements/texts/unclos/closindx.htm

Article15
Delimitation of the territorial sea between States
with opposite or adjacent coasts
Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. 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.


PART XV. SETTLEMENT OF DISPUTES
Article 298. Optional exceptions to applicability of section 2. 1.
When signing, ratifying or acceding to this Convention or at any time thereafter, a State may, without prejudice to the obligations arising under section 1, declare in writing that it does not accept any one or more of the procedures provided for in section 2 with respect to one or more of the following categories of disputes:
(a) (i) disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles, provided that a State having made such a declaration shall, when such a dispute arises subsequent to the entry into force of this Convention and where no agreement within a reasonable period of time is reached in negotiations between the parties, at the request of any party to the dispute, accept submission of the matter to conciliation under Annex V, section 2; and provided further that any dispute that necessarily involves the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental or insular land territory shall be excluded from such submission;

https://pca-cpa.org/wp-content/uploads/sites/175/2016/07/PH-CN-20160712-Award.pdf

从菲律宾南海仲裁案看，联合国海洋法無助於解决亚洲海域主权紏纷

中国認为在南海海域的主权，在近代史上最早由中华民国政府于1930年代勘定，并出版地图。关于这段历史，世界各国均无太大争议。当时根据这一勘定结果绘制的地图得到了当时世界上所有国家及其合法政府的承认，各国地图上都已明确表明南海11段线内为中国所有。在上世纪的众多国际公约和条约中都明确指出和体现。中国对南海的主权在二战后再次得到国际社会承认。上世纪60年代，中国出于中越关系以及地缘政治考虑，允许越南在中国南海领土上建设雷达站等军事设施，将11段线改为了9段线，这就是今天的南海9段线。

二战的结束为全球海洋势力划定了新的秩序。自美国率先宣布其领海的管辖延伸至其大陆架开始，众多国家也开始效仿，宣布将领海延伸到12海里或200海里不等。传统“公海自由航行”的惯例受到了挑战。

其实，这种争议并不仅仅限于南海海域。依据《联合国海洋法公约》的领海、毗连区、专属经济区规定，中国有望获得300万海里的“海洋国土”。孔志国介绍，因为海域宽度的限制，与朝鲜、韩国、日本、菲律宾、马来西亚、文莱、印度尼西亚、越南八国，在海洋主权主张上存在冲突，海洋边界均需进一步确定。例如，在总面积38万平方公里的黄海海域，中、朝、韩三国存在18万平方公里的争议海域；在总面积77万平方公里的东海海域，中日间有16万平方公里的争议海域。

中国与邻国的海权争议就是在这样的背景下节节升级的。依照这个公约的算法，在南海，中国主张的200万平方公里的海域面积中，大概有150多万是重迭的。这还未考虑到一些岛屿的所属权本身至今仍存在争议.

因此，我認为現今的海洋法無助於解决亚洲海域主权紏纷。相反，如果中國自願放棄主權遵守相關的仲裁，才反而是顛覆性的事情。

Bill


《联合国海洋法公约》第298条　适用第2节的任择性例外 1．一国在签署、批准或加入本公约时，或在其后任何时间，在不妨害根据第1节所产生的义务的情形下，可以书面声明对于下列各类争端的一类或一类以上，不接受第2节规定的一种或一种以上的程序：

波恩大学法学院国际法专家塔尔蒙教授（Stefan Talmon）在接受德国之声采访时指出，《联合国海洋法公约》第298条特别规定，一国在签署、批准或加入该公约时，或在其后任何时间，可以书面声明，那些必然涉及同时审议与大陆或岛屿陆地领土的主权或其他权利有关的任何尚未解决的争端，不接受《公约》所规定的一种或一种以上的程序。2006年，中国向联合国提交了一份声明，有关岛屿主权归属问题的争议不接受国际仲裁。
因此，塔尔蒙教授指出，国际仲裁法庭在接到菲律宾的有关起诉之后，必定会立刻宣布，相关诉讼不在其仲裁范围之内，不能受理。从这个意义上讲，菲律宾此举不具有任何的法律效果，只是纯政治性的一步。据"腾讯网"援引菲律宾媒体报道，菲原副外长、原菲驻联合国大使巴查（Lauro Baja）表示，相关争议岛屿（中称黄岩岛）在中国有效控制之下。
专家：国际法庭不能受理菲中岛屿争议 | 德国之声 来自德国 介绍德国 | DW.COM | 22.01.2013
http://www.dw.com/zh/%E4%B8%93%E5%AE%B6%E5%9B%BD%E9%99%85%E6%B3%95%E5%BA%AD%E4%B8%8D%E8%83%BD%E5%8F%97%E7%90%86%E8%8F%B2%E4%B8%AD%E5%B2%9B%E5%B1%BF%E4%BA%89%E8%AE%AE/a-16541423

1994年开始实施的《联合国海洋法公约》的出现，1997年联合国根据《联合国海洋法公约》附件规定成立了大陆架界限委员会，2001年规定，凡是在1999年5月13日以前正式批准或加入《公约》的国家，都需要在10年内向大陆架界限委员会提交大陆架外部界限主张案。
二战的结束为全球海洋势力划定了新的秩序。自美国率先宣布其领海的管辖延伸至其大陆架开始，众多国家也开始效仿，宣布将领海延伸到12海里或200海里不等。传统“公海自由航行”的惯例受到了挑战。
中国与邻国的海权争议就是在这样的背景下节节升级的。依照这个公约的算法，在南海，中国主张的200万平方公里的海域面积中，大概有150多万是重迭的。这还未考虑到一些岛屿的所属权本身至今仍存在争议.
　　其实，这种争议并不仅仅限于南海海域。依据《联合国海洋法公约》的领海、毗连区、专属经济区规定，中国有望获得300万海里的“海洋国土”。孔志国介绍，因为海域宽度的限制，与朝鲜、韩国、日本、菲律宾、马来西亚、文莱、印度尼西亚、越南八国，在海洋主权主张上存在冲突，海洋边界均需进一步确定。例如，在总面积38万平方公里的黄海海域，中、朝、韩三国存在18万平方公里的争议海域；在总面积77万平方公里的东海海域，中日间有16万平方公里的争议海域。

《联合国海洋法公约》第298条　适用第2节的任择性例外 1．一国在签署、批准或加入本公约时，或在其后任何时间，在不妨害根据第1节所产生的义务的情形下，可以书面声明对于下列各类争端的一类或一类以上，不接受第2节规定的一种或一种以上的程序： （a）（i）关于划定海洋边界的第15、第74和第83条在解释或适用上的争端，或涉及历史性海湾或所有权的争端，但如这种争端发生于本公约生效之后，经争端各方谈判仍未能在合理期间所达成协议，则作出声明的国家，经争端任何一方请求，应同意将该事项提交附件Ⅴ第2节所规定的调解；此外，任何争端如果必要涉及同时审议与大陆或岛屿陆地领土的主权或其他权利有关的任何尚未解决的争端，则不应提交这一程序；


《联合国海洋法公约》298 條
３．根据第１款出声明的缔约国，应无权对另一缔约国，将属于被除外的一类争端的任何争端，未经该另一缔约国同意，提交本公约的任何程序。
《联合国海洋法公约》（全） _ 中国网
http://ocean.china.com.cn/2012-12/15/content_27423552_14.htm

中国根据《联合国海洋法公约》第298条提交排除性声明 — 中华人民共和国外交部
2006年8月25日，中国根据《联合国海洋法公约》第298条的规定向联合国秘书长提交声明。该声明称，关于《联合国海洋法公约》第298条第1款（a）、（b）和（c）项所述的任何争端（即涉及海域划界、历史性海湾或所有权、军事和执法活动以及安理会执行《联合国宪章》所赋予的职务等争端），中华人民共和国政府不接受《联合国海洋法公约》第十五部分第二节规定的任何程序。
http://www.fmprc.gov.cn/web/ziliao_674904/tytj_674911/tyfg_674913/t270754.shtml


南海仲裁案-新华网
為什麼中國不參與仲裁呢？原來中國參加《聯合國海洋法公約》的時候，已經列明保留條款，包括南海主權不受公約約束。千萬不要以為中國這樣的要求相當特別，在聯合國安全理事會五個常任理事國：中、英、美、法、俄當中，美國拒絕簽署《海洋法公約》，成為唯一不簽約的大國，而其他四個安理會成員國參加公約時都各自列出保留條款，這種安排並不特殊。

http://www.xinhuanet.com/world/nhzca/

历史渊源
早期（20世纪之前）的国际惯例是以“3海里”作为领海宽度（源自当时的岸炮射程）。到了20世纪，垂涎于海底矿藏和渔业资源，各国纷纷把领海扩大（从12海里到200海里不等）。由于缺乏统一，引出了很多外交管辖权的问题。
　　于是在二战后，联合国召开了三次“联合国海洋法会议”，时间分别在1956、1960、1973。第一次会议达成了4个公约；第二次会议没有任何成果；第三次会议经过漫长的谈判（长达9年），在1982年通过了如今这个海洋法公约。该公约在1994年（第60个国家签署之后）开始生效。通常情况下所说的《联合国海洋法公约》指的是第三次会议形成的文本。
　　
https://program-think.blogspot.com.au/2016/07/UNCLOS.html?m=1


菲律宾共和国诉中华人民共和国有关南海问题管辖权及可受理性裁决书--中国法学网
http://www.iolaw.org.cn/showNews.aspx?id=47650

1994年开始实施的《联合国海洋法公约》的出现，纠结也可能仅仅是纠结而已，《联合国海洋法公约》出台. 1997年联合国根据《联合国海洋法公约》附件规定成立了大陆架界限委员会，2001年规定，凡是在1999年5月13日以前正式批准或加入《公约》的国家，都需要在10年内向大陆架界限委员会提交大陆架外部界限主张案。
二战的结束为全球海洋势力划定了新的秩序。自美国率先宣布其领海的管辖延伸至其大陆架开始，众多国家也开始效仿，宣布将领海延伸到12海里或200海里不等。传统“公海自由航行”的惯例受到了挑战。

　　中国在南海海域的主权，在近代史上最早由中华民国政府于1930年代勘定，并出版地图。关于这段历史，世界各国均无太大争议。当时根据这一勘定结果绘制的地图得到了当时世界上所有国家及其合法政府的承认，各国地图上都已明确表明南海11段线内为中国所有。在上世纪的众多国际公约和条约中都明确指出和体现。

　　在二战时期，日本一度占领南海，但二战结束后，依照波茨坦公约将南海并台湾等诸多侵占的中国领土交还中国，中国对南海的主权在二战后再次得到国际社会承认。上世纪60年代，中国出于中越关系以及地缘政治考虑，允许越南在中国南海领土上建设雷达站等军事设施，将11段线改为了9段线，这就是今天的南海9段线。这样一段风平浪静的历史一直维持到上世纪70年代，周边国家因为南海发现大量资源才纷纷向中国提出领土要求。这些领土要求在早期是零散的, 直至上世纪90年代以前，“纠结”也仅仅是“纠结”而已。

张涵：中国海权的国际法困境_共识网
http://www.21ccom.net/articles/qqsw/zlwj/article_2013101593658.html


南海仲裁案》菲律賓總統杜特蒂進退兩難 民間盼強力護漁 美國未必出兵協防-東協 ASEAN｜中國｜南海｜菲律賓｜南海爭議｜中菲關係｜護漁｜主權｜南海仲裁案｜南海仲裁｜杜特蒂 Rodrigo Duterte-風傳媒-簡恒宇
http://www.storm.mg/article/142057

九段線與海洋法之衝突

領土和領海均是國際法中的重要概念。按海洋法的普遍解釋，領海是領土的一種延伸，領土主權是領海主權的先決條件。《聯合國海洋法公約》定義「專屬經濟區是領海以外並鄰接領海的一個區域」。正如2001年「卡塔爾——巴林案」判決中指出「陸地領土狀况是確定沿海國海洋權利的出發點」。由此可見，領土間接決定了海洋邊界的劃分和利益歸屬。傳統上，中國聲稱「九段線」界定了中國在南海的「歷史性權利」，當中不涉及單純的海洋劃界。換言之，「九段線」所代表的，不是一種疆域的劃界，而是權利的範圍和部分的領土主張。

領土產生領海，進而構成專屬經濟區。中國主張「九段線」內的領土主權，無疑是主張了其領海及專屬經濟區。在處理專屬經濟區的問題上，仲裁庭直接以公約第13條和第121條裁定島礁沒法產生專屬經濟區、大陸架和海洋權利，明顯是排除了主權歸屬的考慮。雖然公約白紙黑字對領海和專屬經濟區有嚴格規定，但裁定變相否定了中國主張的領土主權，間接無視了公約本身「顧及所有國家主權」的主張。
這種「雞與雞蛋」式的爭論，在國際法上的確無法紓緩南海的緊張局面。要建立真正的海洋秩序，似乎要在國際法之上另覓道路。

海牙常設仲裁法院的《南海仲裁案》結果出爐，其中一項仲裁結果是將南海最大一個天然島嶼太平島視為礁石。蘇格蘭格拉斯哥大學（University of Glasgow）國際法碩士、香港執業律師楊銘輝接受《香港輕新聞》專訪，表示仲裁結果堪稱「劃時代」，推翻過往人類對島與礁的認知，可能引起全球海洋劃界的大混亂。

按照《聯合國海洋法公約》121條的規定，「島嶼是四面環水並在高潮時高於水面的自然形成的陸地區域。」和礁石的分別是可否「維持人類居住或其本身的經濟生活」。今次仲裁結果卻指：「現在很多島礁上駐扎的政府人員依賴於外來的支持，不能反映這些島礁的承載力。」

楊銘輝笑言，國際法每字每句都需要小心處理，根據這個仲裁結果伸延，不單只東海的釣魚台及日本的沖之鳥不是島，甚至連香港境內的香港島、浦台島、長洲島、南丫島，甚至大嶼山都沒有足夠的淡水和糧食，要「依賴於外來的支持」，可能都不是島，仲裁庭偏偏又沒有以附帶意見（Obiter dictum）方式重新界定什麼是島。故此，南海仲裁案不但沒有化解紛爭，可能近一步引起全球海洋劃界的大混亂。

楊銘輝：這次菲律賓利用島與礁的判定，令整個南海的島都被視作礁，從而「消滅」中國九段線範圍內島嶼伸延的專屬經濟海域，變相將南海變成「公海」，令海牙常設仲裁法院做到其職權範圍以外的判決，亦即中國所聲稱的非法擴權。

如果被界定為礁，就只能擁有12浬領海主權，不能享有200浬專屬經濟海域的權利，這樣一來，各國在東海、南海爭奪的島嶼已經全無意義。不過，原來屬於各島嶼的專屬經濟區海域忽然變回公海，「先來先得」的守則又適用了，變相將越南、汶萊、菲律賓、馬來西亞等國先前強行在南海霸佔開採的油井「合法化」，更甚是等於鼓勵南海諸國「霸凳仔」，有可能挑起新一輪大規模的南海資源爭奪戰，恐怕連域外國家也可以利用開採技術的優勢，在南海分一杯羹。

記者：荷蘭海牙的常設仲裁法院（PCA）是怎麼樣的機構？和國際海洋法法庭（ITLOS）有什麼分別？過去審理過什麼案件？結果怎麼樣？

楊：國際海洋法法庭（ITLOS）是聯合國主要司法機關，根據《聯合國憲章》設立，位於荷蘭海牙的和平宮內。和平宮另一「租客」是1899年建立的常設仲裁法院（PCA），不過確實和聯合國沒有關係。

至於這次南海仲裁案的「南海仲裁庭」，正如外交部副部長劉振民所說，是為菲律賓單方面提請仲裁而臨時設立的一個機構，常設仲裁法院為仲裁庭提供了秘書服務。故此，仲裁案的新聞稿使用了常設仲裁法院（PCA）的抬頭。

這幾年間，由國際仲裁的案件，最著名的包括俄羅斯和荷蘭爭議，以及英國在扎格斯群島（Chagos Islands）單方面設立海洋保護區。其中2013年俄羅斯海軍扣押荷蘭船隻，俄羅斯認為法庭無權受理此案並拒絕出席聽證會，最後也沒有按照仲裁釋放荷蘭船員及支付賠償金。同樣，英國單方面在扎格斯群島設立海洋保護區，仲裁法庭判英國違反了國際海洋法，但英國一樣無視。至於美國，在1980年代發生的尼加拉瓜訴美國的仲裁案，美國也強調國際法庭對尼加拉瓜案沒有管轄權。故此斷言拒絕接受裁決。

換句話說，如果中國自願放棄主權遵守相關的仲裁，才反而是顛覆性的事情。

記者：這次仲裁案另外一個重點是，中國加入了《聯合國海洋法公約》，即便不應訴也能做出裁決，這又會導致怎麼樣的問題？

必須先搞清楚一個概念，國際法上，國家不論大小，主權一律平等（有如法律人人平等一樣）。由此派生出很多理論，其中之一便是未經國家同意，不得將義務強加於一國之上，即便聯合國六大機構之一的國際法庭（ICJ）也是一樣。

包括中國在內的大部份國家，都明確排除在國際法院等國際司法機構的「強制管轄」之外。這本身反映世界上大部分主權國不願主權主權受到侵害。當然，國際法是不斷演進的，像禁止種族屠殺等已被廣泛認爲是國際法上的「強行法」，即使一國沒有簽訂相關條約亦要遵守。或者過去一國的實踐已形成國際慣例，這樣該國便有義務去遵守。

仲裁庭明知現時結果只可能激化中國，尤其是中國國民的牴觸情緒。這本身違反公約設立仲裁庭以便解決紛爭的根本原意，對解決問題的確毫無幫助。
記者：外交部副部長劉振所指的仲裁是「有償服務」，究竟是怎麼一回事？

楊銘輝：這正正是公約爭議解決機制需要檢討的問題，一般來說，仲裁由抗辯雙方各支付一半的仲裁費用，並由仲裁雙方各指派兩名仲裁員，另一人中立。由於中國一開始便拒絕參與，不可能分擔費用，故仲裁員的費用便肯定由菲方全數承擔。長達三年的仲裁費用必然是天文數字，仲裁員明知其費用將全由菲律賓支付，肯定會影響公正性。

加上這次仲裁的法官，除了德國籍Rüdiger Wolfrum法官為菲律賓指派，日本籍法官柳井俊二指定了其他四名法官，雖然柳井俊二本人沒有參與，但是同樣不能視為足夠的避嫌。要知道避嫌本身就是為了提高公信力，這樣的安排，確實存在嚴重瑕疵。

記者：仲裁結果能否上訴？中國有何方法應對？

楊銘輝：海牙常設仲裁法院沒有上級法院，仲裁結果已是最終判決，而且根據聯合國海洋公約，仲裁結果有強制執行約束力，但沒有機構監督執行。由於常設仲裁法院有別於聯合國轄下的海牙國際法院，聯合國不會處理這些案件，中國是可以指常設仲裁法院越權及非法仲裁等理由，拒絕承認及執行仲裁結果。

現時，美國、日本、澳洲及菲律賓等國，企圖以國際輿論壓力逼迫中國就範，接受仲裁結果，中國目前正採取反制措施，要求聯合國海洋公約二百多個締約國家支持中國的「非法仲裁」指控，截至今日，已有九十多個國家支持中國立場，如果支持國家數目能夠達到大比數，到時中國的聲音就大過美、日、菲、澳，更加大條道理拒絕仲裁結果，而又不損大國聲譽.

楊銘輝
蘇格蘭格拉斯哥大學
（University of Glasgow）
國際法碩士、香港執業律師

香港輕新聞  2016-07-14