CHAPTER VI THE STATUS OF FEATURES IN THE SOUTH CHINA SEA

(SUBMISSIONS NO. 3 TO 7)

The Permanent Court of Arbitration in this chapter assesses the status

of certain maritime features and entitlements to maritime zones that they
are capable of generating for the purposes of the Convention (Paragraph
279, ibid).
There are at least two terminologies adopted by the United Nations
Convention on the Laws of the Seas (UNCLOS) or in this article, generally
called as the Convention. A feature that is exposed at low tide but covered
with water at high tide is referred to as a low-tide elevation (Paragraph 280,
ibid). Furthermore, features that are above water at high tide are referred to
generically as islands (Paragraph 280, ibid). However, the entitlements that
an island can generate to maritime zones will depend upon the application of
Article 121(3) of the Convention, which states that:
Rocks which cannot sustain human habitation or economic life of their own
shall have no exclusive economic zone or continental shelf

Features that will meet the standards or criteria set in Article 121(1) of
the Convention, which states that:
An island is a naturally formed area of land, surrounded by water, which is
above water at high tide

shall be considered as an island and wherein the tribunal preferred to call as

high tide features. Another terminology used by the Tribunal is the
attribution of certain maritime features as rocks for high tide features that
cannot sustain human habitation or economic life of their own and as such,
pursuant to Article 121(3) of the Convention are disqualified to generate an
exclusive economic zone or continental shelf.
Pursuant to Article 121(2) of the Convention, which states that:
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

high tide features to its standards or criteria enjoys the same

entitlement as other land territory under the Convention, which the Tribunal
preferred to call as fully entitled islands. Lastly, features that are fully
submerged, even at low tide, are called as submerged features.
In Philippines Submissions No. 4 and 6 states that, Mischief Reef,
Second Thomas Shoal and Subi are low-tide elevations that do not generate

entitlement to a territorial sea, exclusive economic zone or continental shelf,

and are not features capable of appropriation by occupation or otherwise;
and secondly, Gaven Reef and McKennan Reef (including Hughes Reef) are
low-tide elevations that do not generate entitlement to a territorial sea,
exclusive economic zone or continental shelf, but their low-water line may be
used to determine the baseline from which the breadth of the territorial sea
of Namyit and Sin Cowe, respectively, is measured.
Furthermore, in the Philippines Submissions No. 3 and 7, declared that
Scarborough Shoal, Johnson Shoal, Cuarteron Shoal, and Fiery Cross Reef are
high tide features with rocks that remain above water at high tide.
The Tribunal considered the factual backgrounds of each feature
distance from the baseline of both China and the Philippines. Scarborough
Shoal is 116.2 nautical miles (nm) from the archipelagic baseline of the
Philippine island of Luzon and 448.2 nm from Chinas baseline point 29
(Jiapengliedao) near Hongkong. Cuarteron Reef is 245.3 nm from the
archipelagic baseline of the Philippine islands of Palawan and 585.3 nm from
Chinas baseline point (Dongzhou (2)) adjacent to the island of Hainan.
Johnson reef is 184.7 nm from the archipelagic baseline of the Philippine
islands of Palawan and 580.8 nm from the baseline point 39 (Donzhou (2))
adjacent to Hainan. McKennan Reef is 181.3 nm from the archipelagic
baseline of the Philippine islands of Palawan and 566.8 nm from Chinas
baseline point 39 (Donzhou (2)) adjacent to Hainan. Hughes Reef is 180.3
nm from the archipelagic baseline of the Philippine islands of Palawan and
567.2 nm from Chinas baseline point 39 (Donzhou (2)) adjacent to Hainan.
Gaven Reef is 203.0 nm from the archipelagic baseline of the Philippine
islands of Palawan and 544.1 nm from the Chinas baseline point 39
(Donzhou (2)) adjacent to Hainan. Subi Reef is 231.9 nm from the
archipelagic baseline of the Philippine islands of Palawan and 502.2 nm from
the Chinas baseline point 39 (Donzhou (2)) adjacent to Hainan. Mischief
Reef is 125.4 nm from the archipelagic baseline of the Philippine islands of
Palawan and 598.1 nm from the Chinas baseline point 39 (Donzhou (2))
adjacent to Hainan. Second Thomas Shoal is 104.0 nm from the
archipelagic baseline of the Philippine islands of Palawan and 616.2 nm from
the Chinas baseline point 39 (Donzhou (2)) adjacent to Hainan.
Before deciding on the status of each maritime features and to
determine their respective entitlements, the Tribunal utilizes the definition
and entitlements generated of a low-tide elevation in Article 13 of the
Convention which states that:
1. A low-tide elevation is a naturally formed area of land which is surrounded
by and above water at low tide but submerged at high tide. Where a lowtide elevation is situated wholly or partly at a distance not exceeding the

breadth of the territorial sea from the mainland or an island, the lowwater line on that elevation may be used as the baseline for measuring
the breadth of the territorial sea.

2. Where a low-tide elevation is wholly situated at a distance

exceeding the breadth of the territorial sea from the mainland or an
island, it has no territorial sea of its own.
Furthermore, in determining the status of certain maritime features
necessary evidences must be used in order to validate and describe their
respective features. The Tribunal utilizes satellite imagery the tribunal
agrees with the general point that satellite imagery may be a very useful
tool, but cannot accept the degree of accuracy and certainty that the
Philippines would give to such imagery, and nautical surveying and sailing
directions the necessity to supplement satellite imagery influences the
Tribunal to resort to more convincing evidence concerning the status of the
maritime features in nautical charts, records of surveys, and sailing direction.
Upon the examination of each maritime features introduced by the
Philippines through their Submissions No. 3 to 7 and the utilization of both
satellite imagery and nautical surveying tools and sailing directions
concluded the following:
a. Scarborough Shoal is encumbered by a number of rocks that remain
exposed at high tide and is, accordingly, a high-tide feature
(Paragraph 334, ibid);
b. Cuarteron Reef in its natural condition was encumbered by rocks
that remain exposed at high tide and is, accordingly, a high tide
feature (Paragraph 339, ibid);
c. Fiery Cross Reef in its natural condition was encumbered by a rock
that remain exposed at high tide and is, accordingly, a high tide
feature (Paragraph 343, ibid);
d. Johnson Reef is depicted by various surveys and sailing directions
with having a rock that would likely be exposed at high water and is,
accordingly, a high tide feature (Paragraph 351, ibid);
e. McKennan Reef upon the examination of a recent Chinese chart that
shows that most likely a coral boulder pushed onto the reef platform
and above high water by storm shows a high-tide feature and,
accordingly, is a high-tide elevation (Paragraph 354, ibid);
f. Hughes Reef is a low tide elevation upon having no high tide feature
(Paragraph 358, ibid);
g. Gaven Reef (North) having high tide feature and, accordingly, is a
high-tide feature (Paragraph 366, ibid).

h. Gaven Reef (South) having no high tide feature and, accordingly, is

a low-tide feature (Paragraph 366, ibid).
i. Subi Reef even without a high-tide feature in the location of Sandy
Cay, it would fall within the territorial sea of Thitu as extended by
basepoints on the low-tide elevations of the reefs to the west of the
island (Paragraph 373, ibid);
j. Mischief Reef is a low-tide elevation upon having no high-tide
feature (Paragraph 378, ibid);
k. Second Thomas Shoal is a low-tide elevation upon having no hightide feature (Paragraph 381, ibid).
Furthermore, specifically Philippines Submissions No. 3, 5, and 7
questions the maritime entitlements of certain maritime features such as
Scarborough Shoal, Mischief Reef and Second Thomas Shoal and Johnson
Reef, Cuarteron Reef, and Fiery Cross Reef. Scarborough Shoal as having no
capacity to generate an exclusive economic zone or continental shelf.
Mischief Reef and Second Thomas Shoal are part of the exclusive economic
zone and continental shelf of the Philippines. Lastly, Johnson Reef, Cuarteron
Reef and Fiery Cross Reef generates no entitlement to an exclusive economic
zone or continental shelf. Article 121 of the Convention stipulated the criteria
or standards to be followed in designating maritime features as islands and
their respective entitlement. In this respect the Tribunal concluded, upon
gathering evidences necessary to determine the marine entitlements of
certain maritime features, the following:
a. Scarborough Shoal could not sustain human habitation in their
naturally formed state such that they have no fresh water,
vegetation, or living space and are remote from any feature
possessing such features (Paragraph 556, ibid);
b. Even there is an existing presence of China in Johnson Reef, they
are dependent on outside supplies, and there is no evidence of any
human activity on the said reef prior to the beginning of Chinas
presence in 1988 (Paragraph 559, ibid);
c. The same as Johnson Reef, human activity in Cuarteron Reef is
dependent on outside supplies and even though China have
reclaimed the area, however extensive cannot elevate its status
from rock to fully entitled island (Paragraph 562, ibid);
d. The status and maritime entitlement of the Fiery Cross Reef is the
same as that of Johnson Reef and Cuarteron Reef (Paragraph 565,
ibid);
e. The status and maritime entitlement of the Gaven Reef (North) is
the same as that of Johnson Reef, Cuarteron Reef and Fiery Cross
Reef (Paragraph 565, ibid);

f. McKennan Reef shows no indication that this feature of any

significant size and capability, in its natural condition, of sustaining
human habitation and economic life of its own. There is no evidence
of any human activity on the said reef, nor has any State installed a
human presence there (Paragraph 570, ibid).