Equal Treatment under International Law: The Case for China’s South China Sea Entitlements

An aerial drone photo taken on June 10, 2025 shows the China (Hainan) Museum of the South China Sea in Qionghai, south China's Hainan Province. (Xinhua/Pu Xiaoxu)

Anthony Carty

I think that the starting point has to be the 2016 special PCA judgment on the South China Sea question. China has rejected this judgment, not participated in it, and specifically rejected its arguments.

Now, the trick the tribunal played was to assert that who owned the South China Sea islands did not matter, because these islands were not eligible to have maritime claims to economic zones and continental shelves.

This is a biased decision of the tribunal based upon a refusal of the tribunal to look into already existing practice of other countries, such as the United States, Australia, New Zealand, France, and Japan, all of which claimed without contestation, economic zones and continental shelves for geographical features and maritime features similar to the islands in the South China Sea.

Therefore, the court, the tribunal did not have jurisdiction, because the question whether or not the Filipinos and the Vietnamese had full uninterrupted continental shelves in the South China Sea was interrupted by the issue of sovereignty and ownership of the South China Sea Islands.

Now, I have claimed in my research that it quite clearly shows the South China Sea islands all belong to China.

Now, if China claims its authority over the South China Sea, in terms of economic zones and continental shelves, it achieves much the same as with its nine-dotted line, except for the issue of freedom of navigation.

Freedom of navigation cannot be restricted by claims to the economic resources of the seabed and of fishing rights in the waters above the seabed.

But China, in any case, does not contest the right to freedom of navigation through the South China Sea.

So my view is that if China, without abandoning its own view about its historic rights on the nine-dotted line, were also to make as clear as possible — which I think it is trying to do — that its rights to the South China Sea islands and its maritime claims to the South China Sea islands are in fact identical to all of the types of claims made by similar maritime features in the Asia Pacific region — claims made by France, especially France, above all France, but also by the United States, Japan, Australia, and New Zealand — then China can convince the international community, what I would say, with the possible exception of the United States, that it is a thoroughly law-abiding country, claiming no more maritime rights than anyone else.

So I don't see the conflict at the moment as an inter-civilizational conflict, except that the Chinese have a preference for using arguments with respect to their own historical title, rather than stressing the standard international law rules, which in any case, China does not contest.

So I would think that if it were to run parallel the arguments about its comparable rights of these maritime features in the South China Sea to other maritime features in the Asia-Pacific region, and if it is doing no more than asserting these rights and clearly indicates that it is perfectly willing to accept a maritime delimitation between its islands’ claims and the continental shelf claims of Vietnam and the Philippines, I think that it would be possible to establish a common discourse around legal principles.

And of course, it has to be said that I'm an international lawyer and my contribution to this debate can only be in terms of my international legal knowledge.

But I have done a very thorough study with the consent of the French Foreign Ministry’s legal department, of all the claims that the French has made to maritime features in the Asia-Pacific region.

And these claims have two features which are even more remote and even less distinguished than the claims that would be made by China to the Nansha and the Xisha Islands.

So there is a bias here. It’s possibly a racial bias that China should not be treated the same as others.

But I think that it can be largely resolved in the case of Europeans, Japanese, Australians, and Koreans by a greater stress on these typically Western international law arguments — that have been put forward by the United Kingdom consistently over the whole period from 1909 to 1974 — that the South China Sea islands are Chinese and that the maritime entitlements following from these islands belong to China as an equal member of the international community.

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