Dela Rosa Talisa August 7, 2017

Espiritu Janine
Salamat Joannah LEGAWRI

The Philippines may have won this landmark case, but the battle is not yet over.
To this day, China does not accept the Arbitral Tribunals ruling on the South China
Sea dispute. Chinas President, Xi Jin Ping, asserts that the ruling will not affect
Chinas territorial sovereignty and marine rights.1 The Philippines and other states
cannot force China to acknowledge the ruling. The Philippines does not stand a
chance against Chinas military prowess, but we must find a way to cement the ruling
and assert the Philippines rights on the disputed areas on the South China Sea.
Supreme Court Justice Antonio Carpio suggested seven ways that the Philippines may
enforce the award. Suggestions five and six, specifically, state:2

5. The Philippines can negotiate maritime boundaries with Malaysia (EEZ

and ECS) and Vietnam (ECS), applying the Arbitral Tribunals ruling that
no geologic feature in the Spratlys generates an EEZ and that the nine-
dashed line has no legal effect on maritime entitlements. This will result
in state practice adopting the rulings in the Award.

6. The Philippines can delineate its ECS from Luzon and file its claim
with the CLCS, there being no legal impediment from the nine-dashed
line. China, the only opposite coastal state, can raise two grounds to
oppose the Philippines ECS claim. First, China can against raise its nine-
dashed line claim but the CLCS is bound by the Award of the Arbitral
Tirbunal. Second, China can claim that the Philippine ECS overlaps with
Chinas ECS, but this means China accepts that the Philippines has an
EEZ from Luzon. If China does not oppose the Philippine claim to an
ECS, then the CLCS will recommend to the Philippines the adoption of
its ECS. This is the dilemma that China will face if the Philippines files an
ECS claim.

Suggestion number five indicates a probable solution in which the Philippines

may negotiate maritime boundaries with Malaysia and Vietnam countries who are
also affected by Chinas nine-dashed line claims.3 Malaysia and Vietnam are both
signatories to the United Nations Convention on the Law of the Sea (UNCLOS).
Malaysia ratified UNCLOS on October 14, 1996, while Vietnam ratified it on June 23,
1994.4

Malaysia claims several areas on the South China Sea, specifically on the
Spratlys. One of them is James Shoal. China claims James Shoal as its southernmost
border, even though it is a feature permanently submerged underwater. International
1
Tom Phillips, et al., Beijing Rejects Tribunals Ruling in South China Sea Case, T G, July 12,
2016, <https://www.theguardian.com/world/2016/jul/12/philippines-wins-south-china-sea-case-against-
china> (last accessed August 5, 2017).
2
A T. C, T S C S D: P S R J
W P S, 216 (2017).
3
Id
4
United Nations, Joint Submission to the Commission on the Limits of the Continental Shelf Pursuant to
Article 76, Paragraph 8 of the United Nations Convention on the Law of the Sea 1982 in Respect of the
Southern Part of the South China Sea, available at
<http://www.un.org/depts/los/clcs_new/submissions_files/mysvnm33_09/mys_vnm2009excutivesummary.
pdf> (last accessed August 5, 2017).
law dictates that features fully submerged underwater may not be considered as state
borders.5 Further, James Shoal lies at a considerable distance from China. It is about
950 nautical miles from Hainan Chinas southernmost province. It lies 43 nautical
miles from the Malaysian coast of Sarawak, therefore it is within Malaysias Exclusive
Economic Zone (EEZ).6 China has been sending navy vessels on the Shoal to plant
engraved stones to assert its sovereignty.7 In 2014, China shocked Malaysia by
conducting an oath-swearing ceremony on James Shoal. The Peoples Liberation Army
(PLA) navy swore an oath expressing their firm determination to safeguard [Chinas]
territorial sovereignty and maritime rights and interests.8 China has been conducting
similar ceremonies at the Shoal since 2008.9 Overall, Malaysia is estimated to lose at
least 80% of its EEZ in Sabah and Sarawak.10

Vietnam claims sovereignty over the entire Spratlys. So far, it has not specified
which features it claims sovereignty over. Vietnam base their claims on discovery,
historic title, and effective occupation and control. 11 In 2016, Vietnam and China had a
conflict over a presence of a Chinese oil rig in the disputed areas of the South China
Sea. The oil rig is situated in an overlapping area between the two continental shelves
of Vietnam and China, which has not been delimited. 12 Chinese Foreign Ministry
spokesperson, Hong Lei, claimed that the oil rig is in indisputable waters under
Chinas jurisdiction.13 Similar to Chinas tactics over Philippine vessels, Vietnam has
accused China of ramming Vietnamese fishing vessels on the South China Sea.14 In
2015, Vietnam protested Chinas action of landing a plane on the contested Spratlys.
Vietnam further asserts that China violated Vietnams sovereignty because the airfield
where the plane landed was illegally built on Fiery Cross Reef, which is claimed by
Vietnam as part of their territory.15 Chinas nine-dash line claims mean Vietnam would
lose about 50% of its EEZ.16

From the aforementioned incidents, China has been bullying Malaysia and
Vietnam by using the same intimidating tactics they use for the Philippines. It is also
important to note that the first declaration of Chinas nine-dashed lines was a result of

5
A T. C, T S C S D: P S R J
W P S, 33 (2017).
6
Id
7
Billy Hayton, How A Non-existent Island Became Chinas Southernmost Territory, S C
M P, February 9, 2013, <http://www.scmp.com/comment/insight-opinion/article/1146151/how-
non-existent-island-became-chinas-southernmost-territory> (last accessed August 5, 2017).
8
139, D C. L, ., T R C, 132 (2015).
9
Id
10
A T. C, T S C S D: P S R J
W P S, 30 (2017).
11
Robert C. Beckman & Tara Davenport, CLCS Submissions and Claims in the South China Sea,
available at <https://cil.nus.edu.sg/wp/wp-content/uploads/2009/09/Beckman-Davenport-CLCS-HCMC-
10-12Nov2010-1.pdf> (last accessed August 5, 2017).
12
Mike Ives, Vietnam Objects to Chinese Oil Rig in Disputed Waters, T N Y T, January 20,
2016, <https://www.nytimes.com/2016/01/21/world/asia/south-china-sea-vietnam-china.html> (last
accessed August 5, 2017).
13
Id
14
Id
15
Reuters, Vietnam Protests After China Lands Plane on Disputed Spratlys, available at
<http://www.reuters.com/article/us-vietnam-china-protests-idUSKBN0UG0FA20160103>(last accessed
August 5, 2017).
16
A T. C, T S C S D: P S R J
W P S, 30 (2017).
a joint submission by Malaysia and Vietnam concerning their claims on their respective
extended continental shelves (ECS).17 Vietnam and Malaysia have the strongest claims
in the Spratlys. To reach a happy-medium, states with claims over the Spratlys may
come to an agreement agreeing with the Arbitral Tribunals decision that no geologic
features in the Spratlys are entitled to maritime entitlements. As a result, China would
be isolated as the lone State to invoke maritime entitlements over the geologic features
in the Spratlys.18

If a great number of States follow the Arbitral Tribunals Decision, it may form
part of a state practice. In return, this state practice may become customary
international law (CIL). CIL is one of the sources where International Courts derive their
decisions. Article 38 of the Statute of the International Court of Justice (ICJ) states:19

1. The Court, whose function is to decide in accordance with

international law such disputes as are submitted to it, shall
apply:
a. international conventions, whether general or
particular, establishing rules expressly recognized by
the contesting states ;

b. international custom, as evidence of a general

practice accepted as law;

c. the general principles of law recognized by civilized

nations;

d. subject to the provisions of Article 59, judicial

decisions and the teachings of the most highly qualified
publicists of the various nations, as subsidiary means
for the determination of rules of law [emphasis
supplied].

The International Law Association gave two elements of customary international

law. They are the following:20

(i) Subject to the Sections which follow, a rule of

customary international law is one which is created and
sustained by the constant and uniform practice of States and
other subjects of international law in or impinging upon their
international legal relations, in circumstances which give rise to
a legitimate expectation of similar conduct in the future.

(ii) If a sufficiently extensive and representative

number of States participate in such a practice in a
consistent manner, the resulting rule is one of general

17
The South China Sea Arbitration (Philippines v. China), Case no. 2013-19, Award, 1 at 183 (Permanent
Court of Arbitration 2016).
18
Patricia Lourdes Viray, Carpio: Philippines Can Extend Continental Shelf Claim in Luzon, T
P D I, July 13, 2017,
<http://www.philstar.com/headlines/2017/07/13/1719211/carpio-philippines-can-extend-continental-shelf-
claim-luzon> (last accessed August 5, 2017).
19
Statute of the International Court of Justice, art. 38, par. 1.
20
Mark Weisburd, The International Court of Justice and the Concept of State Practice, 31 U
P J I L 295, 301-302 (2009).
 customary international law. Subject to Section 15, such a
rule is binding on all States. [emphasis supplied]

It requires that a sufficiently extensive and representative number of states

must participate consistently for state practice to become customary law. 21 Malaysia,
Vietnam and the Philippines have overlapping claims over the Spratlys. For them to
agree to acknowledge the Arbitral Tribunals decision, the overlapping claims must first
be solved. Justice Carpios suggestion on negotiation is based under Article 74 and 83
of UNCLOS. States may come to an agreement regarding EEZ and ECS delimitations.
Article 74 states:22

The delimitation of the exclusive economic zone between

States with opposite or adjacent coasts shall be effected by agreement
on the basis of international law, as referred to in Article 38 of the
Statute of the International Court of Justice, in order to achieve an
equitable solution.

Article 83 states:23

The delimitation of the continental shelf between States with

opposite or adjacent coasts shall be effected by agreement on the basis
of international law, as referred to in Article 38 of the Statute of the
International Court of Justice, in order to achieve an equitable solution.

Delimitation is defined as process which involves establishing the boundaries of

an area already, in principle, appertaining to the coastal State and not the determination
de novo of such an area.24

The case of the Philippines and Indonesias maritime negotiations can serve as
an example for the feasibility of suggestion number five. The Philippines and Indonesia
are member states of the 1982 United Nations Convention on the Law of the Sea
(UNCLOS). Part V of UNCLOS discusses Exclusive Economic Zones (EEZ).

Article 57 - Breadth of the exclusive economic zone

The exclusive economic zone shall not extend beyond 200
nautical miles from the baselines from which the breadth of the territorial
sea is measured25

In the case of Indonesia and the Philippines, their EEZs overlap in the Mindanao
Sea and Celebes Sea.26 UNCLOS provides in Article 74, Part V that the delimitation of
the EEZs of the two countries shall be settled by agreement based on international law:

21
Id
22
United Nations Convention on the Law of the Sea, December 10, 1982, Article 74, par. 1., 1983
U.N.T.S. 3 [hereinafter UNCLOS].
23
UNCLOS, art. 83, par. 1.
24
Edward O. Okumagba, Drawing the Borderline - The Equidistant Principle or Equitable Solutions in the
Delimitation of Maritime Boundaries, 2 GSTF I J L S S 55,
56 (2012).
25
UNCLOS art. 57, par. 5.
Marguerite Afra Sapiie, Indonesia to ratify EEZ agreement with Philippines, T J P, April
26

18, 2017,<http://www.thejakartapost.com/news/2017/04/18/indonesia-to-ratify-eez-agreement-with-
philippines.html> (last accessed on August 5, 2017)
 Article 74 Delimitation of the exclusive economic zone between
States with opposite or adjacent coasts
1. The delimitation of the exclusive economic zone between States with
opposite or adjacent coasts shall be effected by agreement on the
basis of international law, as referred to in Article 38 of the Statute of
the International Court of Justice, in order to achieve an equitable
solution.
2. If no agreement can be reached within a reasonable period of time,
the States concerned shall resort to the procedures provided for in Part
XV.
3. Pending agreement as provided for in paragraph 1, the States
concerned, in a spirit of understanding and cooperation, shall make
every effort to enter into provisional arrangements of a practical nature
and, during this transitional period, not to jeopardize or hamper the
reaching of the final agreement. Such arrangements shall be without
prejudice to the final delimitation.
4. Where there is an agreement in force between the States concerned,
questions relating to the delimitation of the exclusive economic zone
shall be determined in accordance with the provisions of that
agreement27 (emphasis supplied)

In accordance with UNCLOS, the two countries conducted investigations in

order to delimit their EEZs and come up with an agreement based said investigations.
The investigations began in 1994 and ended in 2014.28 It was conducted by the Joint
Permanent Working Group on Maritime and Ocean Concerns (JPWG-MOC). In 2011,
then Secretary of Foreign Affairs Albert F. Del Rosario and Dr. R.M/ Marty M.
Natalegawa, the Foreign Minister of Indonesia, signed a Joint Declaration. In it, an
agreement was made to hasten the bilateral negotiations for the delimitation of the
maritime boundaries of the Philippines and Indonesia.29 The JPWG-MOC eventually
reached an agreement on the EEZs of the two countries. On May 2014, Philippines and
Indonesia signed the Agreement Concerning the Delimitation of the Exclusive
Economic Zone Boundary.30 Thus, it is possible for countries to come into agreement
about their maritime boundaries if ever conflict arises.

Suggestion number six states that, the Philippines can delineate its ECS from
Luzon and file its claim with the Commission on the Limits of the Continental Shelf
(CLCS), there being no legal impediment from the nine-dashed line.31 The primary
basis of this enforcement is under Part IV, Paragraph seven of UNCLOS:

The coastal State shall delineate the outer limits of its continental shelf,
where that shelf extends beyond 200 nautical miles from the baselines
from which the breadth of the territorial sea is measured, by straight
lines not exceeding 60 nautical miles in length, connecting fixed points,
defined by coordinates of latitude and longitude. 32

27
UNCLOS, art. 74, par. 5.
28
Department of Foreign Affairs, Q&A on the Philippine and Indonesian agreement on the Exclusive Economic
Zone Boundary, O G, May 23, 2014, <http://www.officialgazette.gov.ph/2014/05/23/faqs-on-
the-philippines-and-indonesia-agreement-on-the-delimitation-of-eez-boundary/> (last accessed on August
5, 2017)
29
I
30
I
31
A T. C, T S C S D: P S R J
W P S, 216 (2017).
32
UNCLOS, art. 76, par. 7.
 The purpose of the CLCS is to help facilitate the implementation of UNCLOS in
respect of the establishment of the outer limits of the continental shelf beyond 200
nautical miles from the baselines from which the breadth of the territorial sea is
measured.33 The CLCS makes recommendations to coastal States on matters related
to the establishment of limits.

This enforcement suggestion means that the Philippines can indicate the exact
position of its ECS from Luzon. Afterwhich, the delineation of the ECS from Luzon may
be filed to the Commission on the Limits of the Continental Shelf (CLCS). Under
UNCLOS, the continental shelf of a state comprises:

[T]he seabed and subsoil of the submarine areas that extend beyond its
territorial sea throughout the natural prolongation of its land territory to
the outer edge of the continental margin, or to a distance of 200 nautical
miles from the baselines from which the breadth of the territorial sea is
measured where the outer edge of the continental margin does not
extend up to that distance.34

There are limitations, however, to the States claim of its continental shelf. The
limitations are provided under article 76 of UNCLOS:

The fixed points comprising the line of the outer limits of the continental
shelf on the seabed shall not exceed 350 nautical miles from the
baselines from which the breadth of the territorial sea is measured or
shall not exceed 100 nautical miles from the 2,500 metre isobath[.] 35 [In
addition,] on submarine ridges, the outer limit of the continental shelf
shall not exceed 350 nautical miles from the baselines from which the
breadth of the territorial sea is measured.36

With regard to the rights of the coastal State over the continental shelf, the
provisions are stated under UNCLOS. There is sovereign rights to explore and exploit
the natural resources that the coastal State can exercise over its continental shelf. 37
Moreover, the sovereign rights are exclusive only for the enjoyment of the coastal
State. This means that in order for other states to have an exploration and exploitation
over the continental shelf, those states should seek for the consent of the coastal
State.38 For the complete provisions under Article 77 of UNCLOS regarding the coastal
States rights over the continental shelf:

1. The coastal State exercises over the continental shelf sovereign rights
for the purpose of exploring it and exploiting its natural resources.
2. The rights referred to in paragraph 1 are exclusive in the sense that if
the coastal State does not explore the continental shelf or exploit its
natural resources, no one may undertake these activities without the
express consent of the coastal State.
3. The rights of the coastal State over the continental shelf do not
depend on occupation, effective or notional, or on any express
proclamation.

33
Division for Ocean Affairs and the Law of the Sea, Commission on the Limits of the Continental Shelf
(CLCS) Purpose, functions and sessions, United Nations,
<http://www.un.org/depts/los/clcs_new/commission_purpose.htm> (last accessed on August 5, 2017)
34
UNCLOS, art. 76, par. 1.
35
UNCLOS, art. 76, par. 5.
36
UNCLOS, art. 76, par. 6.
37
UNCLOS, art. 77, par. 1.
38
UNCLOS. art. 77, par. 2.
 4. The natural resources referred to in this Part consist of the mineral
and other non-living resources of the seabed and subsoil together with
living organisms belonging to sedentary species, that is to say,
organisms which, at the harvestable stage, either are immobile on or
under the seabed or are unable to move except in constant physical
contact with the seabed or the subsoil. 39

If the Philippines decides to enforce suggestion number six of Carpio, China will
definitely oppose the Philippines action. This is because China is the only opposite
coastal state with regard to the ECS of Luzon. According to Carpio, China can raise
two grounds for its expressed opposition. Carpio suggested that First, China can
again raise its nine-dashed line claim[.] Second, China can claim that the Philippine
ECS overlaps with Chinas ECS[.]40

Even if China raises two grounds of opposition for this enforcement, there are
still dilemmas that China will face. For the first ground of opposition, since the
Philippines will file the claim of its ECS to the CLCS, the CLCS will not accept Chinas
nine-dashed line claim since the CLCS is bound by the Award of the Arbitral Tribunal. 41
This is because the CLCS facilitates the implementation of UNCLOS:

The purpose of the Commission on the Limits of the Continental Shelf

(the Commission or CLCS) is to facilitate the implementation of the
United Nations Convention on the Law of the Sea (the Convention) in
respect of the establishment of the outer limits of the continental shelf
beyond 200 nautical miles (M) from the baselines from which the
breadth of the territorial sea is measured.42

Therefore, the CLCS is bound to the Arbitral Tribunals decision that the tribunal
has upheld the Philippine position on various issues.

For China second ground of opposition, if China claims that the Philippines
ECS overlaps with that of China, there is admittance on Chinas part. By stating that
there is an overlap with the two ECS of the Philippines and China, then China obviously
accepts the EEZ of the Philippines in Luzon.43 If China does not oppose the Philippines
claim to an ECS, then the Philippines can adopt its ECS by the CLCS
recommendation.44 This is likely to happen since it would be similar to the Philippines
ECS claim in the Philippine Rise, which no state opposed.45

39
UNCLOS, art. 77.
A T. C, T S C S D: P S R J
40

W P S, 216 (2017).
41
A T. C, T S C S D: P S R J
W P S, 216 (2017).
42
United Nations, Commission on the Limits of the Continental Shelf (CLCS): Purpose, functions and
sessions, <http://www.un.org/depts/los/clcs_new/commission_purpose.htm> (Last Accessed August 5,
2017)
43
A T. C, T S C S D: P S R J
W P S, 216 (2017).
44
Id.
45
Patricia Lourdes Viray, Carpio: Philippines Can Extend Continental Shelf Claim in Luzon, T
P D I, July 13, 2017,
<http://www.philstar.com/headlines/2017/07/13/1719211/carpio-philippines-can-extend-continental-shelf-
claim-luzon> (last accessed August 5, 2017).
 The Philippine Rise, formerly known as Benham Rise, 46 is a part of the
Philippines ECS.47 The Philippines exercises sovereign rights and jurisdiction over the
Philippine rise where the country may explore, exploit, conserve and manage the
natural resources.48 In 2009, the Philippines filed its claim to the territory before the
CLCS. Three years after, the CLCS approved the claim and confirmed that the
landmass as part of the Philippines continental shelf.49

If China does not oppose with the Philippines claim to the ECS, there is a very
high chance that the CLCS will approve the claim of the Philippines, which will give the
country sovereign rights and jurisdiction over the ECS.

An interesting thing to note is China has attempted similar moves before. The
Secretary-General of the United Nations communicated:

On 14 December 2012, the People's Republic of China

submitted to the Commission on the Limits of the Continental Shelf, in
accordance with Article 76, paragraph 8, of the Convention, information
on the limits of the continental shelf beyond 200 nautical miles from the
baselines from which the breadth of its territorial seas is measured in
part of the East China Sea.50

The note verbale attached with the submission stated that it was a partial
submission that concerned the outer limits of the continental shelf beyond 200
nautical miles part of the East China Sea. The submission makes a claim to an
extended continental shelf beyond 200 nautical mile in the East China Sea. In the
submission to the CLCS, China says the continental shelf in the East China Sea is a
natural prolongation of Chinas land territory and that it includes the disputed
islands.51 Under UNCLOS, a country can extend its 200 nautical mile EEZ if it can
prove that its continental shelf is a natural extension of its land mass.

This submission comes from Chinas dispute with Japan in the past regarding
the East China Sea. There is conflict because of uninhabited islands, close to areas
rich in fishing grounds and possible large oil and gas reserves.52 China claims that the
area (Diaoyu Dao upfold zone), located between the East China Sea and Okinawa
Trough, given that the Okinawa Trough is the natural termination of the continental
shelf of the East China Sea.53 Japan argued that the islands, referred to by them as
Senkaku Islands, are inherently part of Japanese territory due to historical facts and

46
Exec. Order No. 25 (2017).
47
Christine Avendano, Duterte renames Benham Rise Philippine Rise, May 23, 2017,
<http://newsinfo.inquirer.net/898607/duterte-renames-benham-rise-philippine-rise> (Last Accessed
August 5, 2017).
48
Id.
49
Marielle Medina, Timeline, T P D I, Mar 19, 2017,
<https://www.pressreader.com/philippines/philippine-daily-inquirer/20170319/281818578647273> (Last
Accessed August 5, 2017).
50
U.N. Division for Ocean Affairs and the Law of the Sea, Receipt of the Submission made by the
Peoples Republic of China to the Commission on the Limits of the Continental Shelf, December 14,
2012, <http://www.un.org/depts/los/clcs_new/submissions_files/chn63_12/clcs_63_2012.pdf> (last
accessed on August 5, 2017)
51
Michelle Nichols, U.N. to consider validity of Chinas claim over disputed islands, R, January
25, 2013, <http://www.reuters.com/article/us-japan-china-islands-un-idUSBRE90N16Z20130125> (last
accessed on August 5, 2017)
52
Id.
53
Id.
on the basis of international law. They also pointed out that the islands were under the
valid control of the Japanese. Tension ultimately rose when the Japanese government
purchased them from a private Japanese owner, resulting in military standoff.54

The East China Sea dispute stems from overlapping

jurisdictional claims under the U.N. Convention on the Law of the Sea
(UNCLOS). Japan claims an exclusive economic zone (EEZ) as far as its
median line that bisects the East China Sea. China, meanwhile, has
always claimed a continental shelf as far as the Okinawa Trough based
on the principle of natural prolongation, the basis upon which
continental shelf claims are made 55

During this time, China was also reported to have been in negotiations with
other states regarding the delimitation of the continental shelf.56 Similar to the fifth
suggestion of Justice Carpio.

54
Id.
55
James Manicom, Chinas Claims to an Extended Continental Shelf in the East China Sea: Meaning and
Implications, 9 C B, July 9, 2009
56
Michelle Nichols, U.N. to consider validity of Chinas claim over disputed islands, R, January
25, 2013, <http://www.reuters.com/article/us-japan-china-islands-un-idUSBRE90N16Z20130125> (last
accessed on August 5, 2017)