Carpio's POV

1. UNCLOS

- governs maritime disputes among member states

- codified customary international law, introduced novel concepts like the exclusive economic zone and
the extended continental shelf, and institutionalized the common heritage of mankind

- All the states involved in the South China Sea dispute have ratified UNCLOS

- well-entrenched doctrine in the Law of the Sea is that “land dominates the sea.” Simply put, all
maritime zones or entitlements are measured from the coast of continental land, island or rock above
water at high tide (Articles 3, 57 & 76, UNCLOS)

- As stated in the North Sea Continental Shelf Cases (Germany v. Denmark, Germany v. Netherlands),
“the land is the legal source of the power which a State may exercise over territorial extensions to
seaward.” The rights of a coastal state over the continental shelf do not depend on occupation, effective
or notional, or on any express proclamation [Article 77(3), UNCLOS].

- States that if the coastal state does not explore the continental shelf or exploit its natural resources, no
one may undertake such activities without the express consent of the coastal state [Article 77(2),
UNCLOS].

2. PERMANENT COURT ARBITRATION

- established by treaty in 1899, is an intergovernmental organization providing a variety of dispute

resolution services to the international community

- established by the Convention for the Pacific Settlement of International Disputes, concluded at The
Hague in 1899 during the first Hague Peace Conference

- Article 16 of the 1899 Convention recognized that “in questions of a legal nature, and especially in the
interpretation or application of International Conventions” arbitration is the “most effective, and at the
same time the most equitable, means of settling disputes which diplomacy has failed to settle”

- The Philippine arbitration case against China does not involve a territorial dispute but exclusively
maritime disputes involving the interpretation or application of UNCLOS. The Philippines did not ask the
Arbitral Tribunal to rule which state is sovereign over certain islands or rocks above water at high tide.
Rather, the Philippines asked the Arbitral Tribunal to rule on the extent of the maritime entitlements (0,
12 or 200 NM) of certain geologic features, regardless of which state, if any, exercises sovereignty over
them.

- On July 12, 2016, the PCA issued a unanimous decision favoring the Philippines after conducting
multiple proceedings on the arbitration case, according to Alejano.
- “The PCA declared that China’s ‘nine-dash line’ has no legal basis in international law. Moreover, the
efforts exerted by the Philippine Government displayed our country’s commitment to international law
and due process. More importantly, the PCA ruling affirms the country’s entitlements over the resources
within the West Philippine Sea,” Alejano said.

3. EXCLUSIVE ECONOMIC ZONE (EEZ)

- together with the Extended Continental Shelf (ECS), is a novel concept introduced by the UNCLOS

- EEZ is 200 NM measured from the baselines or 188 NM measured from the outer limit of the 12 NM
territorial sea; specific sovereign rights and jurisdiction only within the 188 NM area. The EEZ is a legal
concept based on distance from the baselines and does not depend on the geomorphology of the
continental shelf.

- ECS is the outer limits of a coastal state’s continental shelf beyond 200 NM; not exceeding 150 NM
measured from the outer limit of the EEZ, or if there is a drop to a 2,500 meter isobath before the 150
NM limit, the ECS shall not exceed 100 NM from such 2,500 meter isobath; living resources belong to all
mankind, while non-living resources and sedentary species belong to the adjacent coastal state. The ECS
is a geomorphological concept starting from the outer limit of the EEZ at 200 NM from the baselines.

4. ISLAND, ROCK, LTE, AND SHOAL

- An island is defined as a “naturally formed” area of land, surrounded by water, and above water at high
tide (Article 121, UNCLOS).

- Rocks not capable of human habitation or economic life of their own are only entitled to a territorial
sea of 12 NM (Article 121, UNCLOS).

- A low-tide elevation (LTE) is a naturally formed area of land (rock, reef, atoll, or sandbar) surrounded by
water, above water at low tide but submerged at high tide. An LTE is part of the continental shelf, and is
not land or territory, and thus has no territorial sea, territorial airspace or any maritime zone (Article 13,
UNCLOS). An LTE beyond the territorial sea is not subject to appropriation or sovereignty by any state.

5. SPRATLYS, KALAYAAN ISLAND GROUP, SCARBOROUGH SHOAL

- In the Spratly Islands, China, Vietnam, the Philippines, Malaysia, and Brunei have territorial disputes,
with China and Vietnam claiming the entire Spratlys, while the Philippines and Malaysia claiming only
certain islands and rocks above water at high tide. Louisa Reef, within Brunei’s EEZ and about 1 meter
above water at high tide, is claimed by Brunei, and by China as Nantong Reef. (Carpio, p. 46 and p. 97-98)

- The Kalayaan Island Group and its waters off Palawan are vital to the national security
and economic survival of the Philippines.The KIG is critical to Philippine territorial
integrity and security against external threats, keeping in mind the country’s
strategic location, history of foreign invasions, and its fragmented geographic
configuration which makes it vulnerable to intrusion from the seas. We must avoid
a repetition of history when, during the Second World War, Ligaw Island (Itu
Aba/Taiping) was used by the Japanese to launch aggression against the Philippines
and other Southeast Asian nations (Baviera et., al. 2013).

- The KIG is important to the Philippines’ food security because of its rich fisheries
and fish breeding areas. Filipino scientists believe its ecosystem is linked to the
Sulu Sea and other marine ecosystems of the archipelago, which makes the
fisheries resources in these areas interrelated and interdependent. The livelihood
and economic welfare, especially of hundreds of our coastal communities, are tied
to all our marine waters.

- The KIG is important to energy security since it is known to have largely untapped
petroleum reserves as well as mineral deposits. Geological studies show that the
Spratlys (also known as ‘Dangerous Grounds’), Palawan, the Reed Bank, and the
Calamian block all form part of a single micro-continent.20 The nature and
characteristics of the seabed underneath the KIG are similar to those of the seabed
elsewhere in the Philippine continental shelf, according to the studies conducted in
1988 and 1989, showing that KIG is a submerged natural prolongation of
Palawan.21 Under United Nations Convention on the Law of the Sea (UNCLOS), the
Philippines is entitled to the area’s petroleum, mineral and other non-living
resources (Baviera et., al. 2013).

- UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III
creates a sui generis maritime space – the exclusive economic zone – in waters
previously part of the high seas. UNCLOS III grants new rights to coastal States to
exclusively exploit the resources found within this zone up to 200 nautical miles.
UNCLOS III, however, preserves the traditional freedom of navigation of other
States that attached to this zone beyond the territorial sea before UNCLOS III
(Magallona v Ermita, 2011).

- China and the Philippines have a territorial dispute over Scarborough Shoal. The maritime entitlements
of rocks above water at high tide, like Scarborough Shoal, can be independently determined without
deciding which state exercises sovereignty over the rocks. One does not need to know which state has
sovereignty over such rocks to conclude with certainty that such rocks are not capable of sustaining
human habitation or economic life of their own. Not a single blade of grass grows on the rocks of
Scarborough Shoal, and not a single drop of fresh water can be squeezed from those rocks. Scarborough
Shoal, whose biggest rock is 1.2 meters above water at high tide, can generate only a 12 NM territorial
sea, regardless of which state has sovereignty over the shoal. (Carpio, p. 47 and p. 97-98, p. 162-163)