PHILIPPINES VS.

CHINA

An international tribunal in The Hague released a landmark decision on Tuesday in a dispute between China and the
Philippines over the South China Sea. Here are answers to six questions about the case.

What is this case about?

The Philippines filed a complaint in 2013 after China took control of a reef about 140 miles from the Philippine coast. It
accused China of violating international law by interfering with fishing, endangering ships and failing to protect the marine
environment at the reef, known as Scarborough Shoal.

But the Philippines also went further, asking an international tribunal to reject China’s claim to sovereignty over waters within
a “nine-dash line” that appears on official Chinese maps. The dashes encircle as much as 90 percent of the South China
Sea, an area the size of Mexico that is vital to global trade and rich in natural resources, including potential oil deposits.

The Philippines also accused China of violating international law by dredging sand to build artificial islands out of several
reefs in the South China Sea, including one it says is in its waters.

What does international law say?

The Philippines filed its complaint under the United Nations Convention on the Law of the Sea, which lays out rules for the
use of the world’s oceans. The treaty came into force in 1994 and has been ratified by both China and the Philippines, as
well as 165 other states and the European Union.

The treaty says a country has sovereignty over waters extending 12 nautical miles from its coast, and control over economic
activities in waters on its continental shelf and up to 200 nautical miles from its coast, including fishing, mining, oil exploration
and the construction of artificial islands.

The treaty sets out detailed rules for defining these zones, what to do when two nations’ zones overlap and how to resolve
disputes.

China’s nine-dash line includes waters beyond these zones, and Beijing has cited what it calls historical evidence to support
it.

But the tribunal rejected that argument, saying any historic rights that China enjoyed previously “were extinguished” by the
treaty. The tribunal also said that while Chinese navigators and fishermen had historically used islands in the sea, there
was no evidence Beijing had ever exercised exclusive authority over the waters or their resources.

What does China say?

China has boycotted the international tribunal that was set up to hear the case.

It says the panel of five judges and legal experts has no jurisdiction because the sovereignty of reefs, rocks and islands in
the South China Sea is disputed.

The argument goes like this: If you don’t know what countries these specks of land belong to, you can’t use the treaty to
draw territorial and economic zones in the waters around them. And the judges can’t decide whom the specks of land belong
to because the Law of the Sea deals only with maritime disputes, not land disputes.

China also says it reached a deal with the Philippines years ago to settle disputes in the South China Sea through
negotiations. That agreement, it says, prohibited the Philippines from taking the case to the tribunal.

Why is this case important?

In addition to China and the Philippines, four states — Brunei, Malaysia, Taiwan and Vietnam — claim parts of the South
China Sea, and China’s nine-dash line overlaps with the “exclusive economic zone” of a fifth country, Indonesia. Their
differences sometimes escalate into skirmishes, and people are worried that an incident could erupt into a broader conflict.

Tuesday’s decision is the first time an international tribunal has ruled on any of these disputes. It could set a precedent or
establish principles for easing tensions. It could also alter the political dynamic in the region, restraining some countries
while emboldening others.

China probably has the most at stake. Since the case was filed, it has conducted enormous dredging operations to transform
reefs into artificial islands with military runways and naval harbors, over the objections of countries with competing claims
as well as those of the United States. The tribunal could declare some of this construction illegal, or it could leave the
question unresolved.

Either way, China’s response to the decision will be seen as a test of what kind of country it is becoming — a global leader
committed to international law and institutions, or a superpower willing to take unilateral action against its neighbors.

Why does the Chinese government care so much about the South China Sea?

Chinese military strategists say China needs to control the sea to defend itself, to push the United States out of the Western
Pacific and to become a naval power.

China also depends on the shipping routes that go through the sea, and is eager to lay claim to oil and other resources to
fuel its voracious economy.

There are domestic political factors, too. Chinese schoolchildren are taught that the sea has belonged to China since ancient
times, and President Xi Jinping has used the construction of artificial islands in the sea to fan nationalist sentiment and
strengthen his authority over the Chinese military.

What happens if the tribunal rules against China?

The Chinese government has said it will not “accept, recognize or execute” the decision.

While the decision is binding, the tribunal has no power to enforce it, and no one expects that China will volunteer to
dismantle its artificial islands and return the sand to the ocean floor.

But the United States, the region’s dominant military power, could use the decision to justify more naval patrols in the area,
to recruit new allies and give more support to old ones, and to rally world opinion against Beijing’s behavior.

While it will denounce the decision in public, the Chinese leadership may decide to back off and begin easing tensions with
neighboring countries. It could start with the new Philippine president, Rodrigo Duterte, who says he wants to improve
relations with China and has proposed talks on maritime cooperation.

But some analysts are worried that President Xi will respond instead with defiance.

Chinese diplomats have already suggested China might withdraw from the Convention on the Law of the Sea.

It could also begin transforming the reef at the center of the dispute, Scarborough Shoal, into a military outpost, risking a
clash with the Philippines, an American ally.

And it might try to impose a new “air defense identification zone” over part of the South China Sea, asserting the right to
identify, monitor and take military action against planes in the area.
Correction: Aug. 11, 2016

An earlier version of this article referred incorrectly to Indonesia. Although its “exclusive economic zone” overlaps with
China’s nine-dash line, it does not in fact have any territorial claims on the South China Sea.
PHILIPPINES VS CHINA

China claims “historic rights” over the islands and other maritime features in the South China Sea. The Philippines contests
these claims on the ground that they are incompatible with the 1982 Convention on the Law of the Sea. It initiated arbitration
under Annex VII of the (UNCLOS) for a declaratory judgment to that effect. China rejected the arbitral procedure in part
because of its 2006 Declaration which excludes all such disputes from the compulsory dispute settlement procedure of the
Convention. This paper examines the recent award of the Arbitral Tribunal accepting jurisdiction over the some of the
submissions made by the Philippines. It finds that the UN Convention on the Law of the Sea has very little to offer to decide
on issues of sovereignty and associated issues of overlapping maritime entitlements.

PHILIPPINES VS CHINA

Introduction
Since the 1970s, the South China Sea has been a nest of competing sovereignty claims over the island features and
ocean spaces by a number of adjacent countries. Included in this is China’s nine-dash line, first officially communicated
in notes verbale to the United Nations in 2009.[1] In addition, China has recently engaged in, amongst other things, the
physical enhancement of many of the small features of the Spratly Islands and enforcement of a moratorium on fishing in
the South China Sea.
The decision of the South China Sea Arbitration[2] by a tribunal established pursuant to the UN Convention on the Law of
the Sea[3] (UNCLOS) has landed in this cauldron. UNCLOS provides for compulsory adjudication of disputes concerning
the interpretation and application of the Convention, subject to a number of exceptions. In 2013, the Philippines
commenced the case against China.[4] Although a long-standing party to the Convention, China declined to participate in
the establishment of the Tribunal or to appear before it.[5] In deciding not to appear, China has followed a small number of
states that have similarly declined to participate in cases before the International Court of Justice (ICJ), as well as the
more recent nonparticipation by the Russian Federation in UNCLOS procedures in the Arctic Sunrise Case brought by the
Netherlands.[6]
There were fifteen Philippine Submissions dealt with by the Tribunal.[7] The Submissions that have received the most
post-decision attention and that are the focus of this Insight include the legal validity of China’s claim of rights within the
nine-dash line in light of UNCLOS and what—if any—maritime zones appertain to the insular features in the South China
Sea.
China viewed the principal subject matters in dispute as political and beyond the jurisdiction and competence of the
Tribunal. The Philippines characterized the subject matters in dispute as involving the interpretation and application of
UNCLOS and thus within the jurisdiction of the Tribunal. As a result of this difference of views, it was necessary for the
Tribunal to assess whether it had jurisdiction to deal with the merits of the Philippine submissions.
The Tribunal held that it had jurisdiction to consider the merits of almost all the Submissions made by the Philippines and,
overall, accepted the claims and arguments on the merits asserted by the Philippines.[8]
Legal Status of the Award
UNCLOS, the international legal basis for the arbitration, is very clear in Annex VII, Arbitration, Article 11 that “[t]he award
of the arbitral tribunal shall be final and binding and without appeal . . . . It shall be complied with by the parties to the
dispute.”[9]
Hence, there is no argument to be made that nonappearance by a state changes or effects the “final and binding” nature
of the Award. Moreover, while China has asserted both after the release of the 2015 Award on Jurisdiction and the 2016
Award that the both are “null and void” and have “no binding force,”[10] there is no legal basis in UNCLOS for such
assertions.
China has further stated that it “neither accepts nor recognizes” the Award.[11] There is a modest practice of states opting
not to accept or recognize, and thus not comply with, decisions of the ICJ, the International Tribunal for the Law of the
Sea (ITLOS), and a tribunal established pursuant to UNCLOS.
Rocks/Low-Tide Elevations or Islands
Jurisdiction
The Philippines argued that the Tribunal had jurisdiction to determine whether certain insular features in the South China
Sea were either rocks (entitled to a 12 nm territorial sea), low-tide elevations no territorial sea), or islands (entitled to a
200 nm zone), even though the features in question were subject to territorial sovereignty disputes, as this involved
interpretation of the relevant provisions of UNCLOS.[12]
China directly countered this, arguing that the heart of the dispute concerned territorial sovereignty, not the “interpretation
or application” of UNCLOS. [13] In the alternative, China argued that the rock-or-island determination concerned maritime
boundary delimitation, which, as result of China’s Declaration of August 26, 2006,[14] was exempted from compulsory
adjudicative jurisdiction under UNCLOS.[15]
In reaching the conclusion that it had jurisdiction to determine the status of the contested features, the Tribunal stated that
it “does not accept . . . that it follows from the existence of a dispute over sovereignty that sovereignty is also the
appropriate characterization” of the Philippine claims that the features were rocks or low-tide elevations.[16] In making this
determination, it noted that none of the Philippine Submissions required a determination of sovereignty. [17]
The Tribunal did not accept China’s assessment of the dispute as involving maritime boundary delimitation, stating that it
was “not convinced,” and that “[i]t does not follow . . . that a dispute over an issue that may be considered in the course of
a maritime boundary delimitation constitutes a dispute over maritime boundary delimitation itself.”[18] More specifically,
the Tribunal commented that entitlement to maritime zones “is distinct” from delimitation of those zones in an area where
entitlements overlap.”[19]
Merits
In the period immediately prior to the issuing of the Award, China had significantly modified and enhanced numerous
features in the Spratly Islands. The Tribunal clearly stated that UNCLOS “requires that the status of a feature be
ascertained on the basis of its earlier, natural condition, prior to the onset of significant human habitation.”[20]
The Tribunal accepted that in order to examine the Submissions regarding the location of the Philippine exclusive
economic zone (EEZ), it was necessary to determine the legal status of all of the relevant high-tide features that are part
of the Spratly Islands.[21] The Tribunal focused upon the six largest features, observing that if these were characterized
as rocks under UNCLOS, then the same conclusion would apply to the other high-tide features in the Spratly Islands.[22]
Unlike previous international tribunals that had accepted certain features as islands or rocks without explicitly applying
UNCLOS Article 121(3),[23] the Tribunal analyzed its application in detail.[24] The Tribunal’s interpretation placed great
emphasis on the physical conditions of the feature in question such as “the natural capacity, without external additions . . .
to sustain human habitation or an economic life of its own.”[25] The Tribunal also delved into the definition of the terms
involved in this standard. Additionally, the Tribunal directed that where the physical conditions did not determine clearly
whether a feature is a rock or island then the historical use will be relevant. In this regard, the Tribunal concluded “that a
feature that has never historically sustained a human community lacks the capacity to sustain human habitation.”[26]
Applying their understanding of Article 121(3) to the relevant high-tide features in the Spratly Islands, the Tribunal noted
that although the features were “capable of enabling the survival of small groups of people”[27] and that the features could
not be “dismissed as uninhabitable on the basis of their physical characteristics,” nevertheless, there was “no indication
that anything fairly resembling a stable human community has ever formed on the Spratly Islands” with the result that all
of the high-tide features were classed as rocks.[28]

The Nine-Dash Line and Historic Rights[29]

The principal jurisdictional question concerning the nine-dash line and possible Chinese historic rights therein was
whether such a claim was captured by the wording of Article 298(1)(a)(i) of UNCLOS, covering “disputes . . .involving
historic bays or title”[30] and thus that the Tribunal was without jurisdiction due to China’s 2006 Declaration.[31] On the
merits, at issue was the relationship between the historic rights asserted by China within the nine-dash line and the rights
of the Philippines based on UNCLOS in areas beyond China’s EEZ or continental shelf and within the EEZ or continental
shelf of the Philippines.
To deal with both questions, the Tribunal assessed “the nature of any historic rights claimed by China” within the nine-
dash line, which was “complicated by some ambiguity in China’s position.”[32] The Tribunal undertook an examination of
China’s statements and actions[33] concluding “that China claims rights to living and non-living resources within the ‘nine-
dash line’ but (apart from the territorial sea generated by any islands) does not consider that those waters form part of its
territorial sea or internal waters.”[34]
The Tribunal indicated that the term historic title in Article 298 centered on the historic title wording in Article 12(1) of the
1958 Convention on the Territorial Sea and Contiguous Zone.[35] The Tribunal took the view that the 1958 “historic title”
wording was tied directly to the historic terminology as used in the 1951 Anglo-Norwegian Fisheries case, where the area
in question was “an area of sea claimed exceptionally as internal waters.”[36] Based upon this, the Tribunal took the view
that the meaning of historic title in Article 298 was “claims to sovereignty over maritime areas derived from historical
circumstances.”[37] Having determined that China was claiming historic rights and not historic title, the Tribunal concluded
that China’s 2006 Declaration was not available as regards China’s historic claims.[38]
Concerning the merits, the relationship between the historic rights asserted by China within the nine-dash line and the
rights of the Philippines based on UNCLOS, the Tribunal sided with the Philippines concluding that UNCLOS “leaves no
space for an assertion of historic rights,” and that “China’s claim to historic rights to the living and non-living resources
within the ‘nine-dash line’ is incompatible with the Convention.”[39]
Concluding Comments
In the immediate aftermath, the reactions indicate little hope that the South China Sea Award will result in a period of
peaceful management of the tangled disputes within the South China Sea. China has loudly condemned the Award and a
joint statement from ASEAN and China did not even mention it. Somewhat more encouraging are the preparatory talks
that have taken place between the Philippines and China.[40]
It has long been recognized by those who have a significant history with the South China Sea disputes that if the
numerous maritime features in the South China Sea were all categorized as either low-tide elevation or rocks, the result
would be that the 200 nm zones in the region would be measured from the mainland coasts. This would cause almost all
of the maritime claim disputes to become bilateral, rather than multilateral, which could in turn create a possibility for
resolution and de-escalation. Part of this as well is that the nine-dash line be without legal effect. As of 2009, the South
China Sea ASEAN states advocated such a position.[41] In light of the Tribunal’s ruling, this could be a potential path
forward.
Article 121(3) was a provision of deliberately negotiated vagueness, thus Tribunal’s rock/island criteria can be viewed
perhaps as “missionary” work. The rock or island criteria in the Award may result in states able to more readily reach
maritime boundary agreements and adjudicative bodies more readily make such determinations. It will be future tribunals,
courts, and state practice that will determine whether this “missionary” aspect of the Award finds favour.
Of final note, concerns about whether the Award and China’s rejection of it have undermined confidence in UNCLOS
dispute resolution procedures are perhaps misplaced. Subsequent to the commencement of the South China Sea
Arbitration, three parties have brought cases before ITLOS and two have commenced UNCLOS, Annex VII arbitration
cases.

SOUTH CHINA SEA ARBITRATION

(PCA Case Number 2013–19)
Between The Republic of the Philippines and The People’s Republic of China
Before An Arbitral Tribunal Constituted Under Annex VII to the United Nations Convention on the Law of the Sea
1982

The South China Sea has, especially in contemporary times, emerged as a region of great interest to global players, in
terms of strategic and economic interests of the competing States. As Foreign Policy puts it, “There’s no tenser set of waters
in the world than the South China Sea. For the last few years, China and its neighbors have been bluffing, threatening,
cajoling, and suing for control of its resources.”[2]
To best understand the current situation in the South China Sea from a legal point of view, it is imperative to refer back to
the judgment passed by the Arbitral Tribunal of the Permanent Court of Arbitration last year, in response to the claims
brought by Philippines against China, primarily regarding maritime rights, entitlements and zones in the South China Sea,
as well as for the protection of the marine life and the environment of the region, under the United Nations Convention on
the Law of the Sea, 1982.
China has always argued for historic rights, as demarcated by the ‘Nine Dash Line’ on its official maps of the region in
question; other stakeholders, however, dispute this claim, as shown in the arbitral proceedings. As is noted:
… While it was the Philippines which brought the case, it wasn’t the only interested party in the Asean. Three other members
have claims to parts of the South China Sea or the Spratly Islands or the Paracels that conflict with China’s expansive nine-
dash theory: Brunei, Malaysia, and Vietnam. Indonesia, Asean’s largest economy, has continuing run-ins with Chinese
fishing vessels and occasionally with the Chinese Coast Guard in its exclusive economic zone.[3]
Now, as the Association of South East Nations (ASEAN) heads towards working on the enforcement of this arbitration award
from last year (2016), and attempting to employ a code of conduct for the South China Sea, it becomes even more important
to look at the arbitral ruling from an objective vantage point.
Case Brief
The South China Sea Arbitration was conducted between the Republic of the Philippines and the People’s Republic of
China by the Permanent Court of Arbitration (PCA), under the 1982 United Nations Convention on the Law of the Sea
(UNCLOS). The arbitration is related to disputes between the Parties regarding the legal basis of maritime rights and
entitlements, the status of certain geographic features, and the lawfulness of certain actions taken by China in the South
China Sea; in particular, the following four issues, as raised by Philippines:
1. To resolve a dispute between the parties regarding the source of maritime rights and entitlements in the South China
Sea;
2. To resolve a dispute between the parties concerning the entitlements to maritime zones that would be generated under
the Convention by Scarborough Shoal and certain maritime features in the Spratly Islands that are claimed by both the
parties;
3. To resolve a series of disputes concerning the lawfulness of China’s actions in the South China Sea, vis-à-vis interfering
with Philippine’s rights, failing to protect and preserve the marine environment, and inflicting harm on the marine
environment (through land reclamation and construction of artificial islands);
4. To find that China has aggravated and extended the disputes between the Parties by restricting access to a detachment
of Philippines Marines stationed at Second Thomas Shoal.
While China and Philippines are both parties to the UNCLOS, China specifically made a declaration in 2006 to exclude
maritime boundary delimitation from its acceptance of compulsory dispute settlement. In addition, China has shown
disagreement with Philippines’ decision to take the matter to arbitration and has decided neither to agree with the decision
of the Tribunal nor to participate in the proceedings.
The Tribunal, on its end, has taken cognizance of these factors and has purported to not deal with delimiting maritime
boundaries. Furthermore, the Tribunal did not bar the proceedings, on the basis of Article 9 of Annex VII of UNCLOS[4]. In
addition, the Tribunal also noted that despite China’s absence from the proceedings, since it is a party to the UNCLOS, the
decision of the Tribunal would, in fact, be binding upon it, pursuant to Article 296 (1)[5] and Article 11 of Annex VII[6].
China’s Foreign Ministry, further, stated its position with regard to the proceedings by publishing a Position Paper in 2014[7].
It claimed that the Tribunal lacks jurisdiction over the matter because:
1. The essence of the subject-matter of the arbitration is the territorial sovereignty over the relevant maritime features in
the South China Sea;
2. China and the Philippines have agreed, through bilateral instruments and the Declaration on the Conduct of Parties in
the South China Sea, to settle their relevant disputes through negotiations;
3. Philippines’ disputes would constitute an integral part of maritime delimitation between the two countries.
The Tribunal considered China’s Position Paper as a plea on jurisdiction, and conducted a separate hearing on the issue
of jurisdiction and admissibility. Additionally, the Tribunal also declared that it would honour China’s declaration of 2006 and
the UNCLOS and would neither delve into issues of maritime boundary delimitation or questions of sovereignty. The
Philippines also stated that it, “does not seek in this arbitration a determination of which Party enjoys sovereignty over the
islands claimed by both of them. Nor does it request a delimitation of any maritime boundaries.”[8]
Pursuant to this, the Tribunal issued its Award on Jurisdiction[9] in October 2015, in which it concluded that it did indeed
have jurisdiction in the case, as per Philippines’ Final Submissions[10], and that China’s lack of participation would not
prove to be a bar to its proceedings. It, further, concluded that the treaties China was relying on were either political in
nature and not legally binding[11], or that they did were legally binding and yet did not bar either Party from alternative
means of dispute resolution[12]. In accordance with Article 283 of the UNCLOS[13], the Tribunal found that this requirement
was met in the diplomatic communications between the Parties and that Philippines’ initiation of proceedings under the
UNCLOS did not constitute an abuse of of process as claimed by China.
The Tribunal, proceeding with the first two submissions made by the Philippines, considered the validity of China’s claim to
historic rights in the maritime region of the South China Sea and the ‘Nine-Dash Line’. Through a lengthy analysis of the
text and context of the Convention, in line with the principles set out in the Vienna Convention on the Law of Treaties, the
Tribunal established that the Convention supersedes any treaties in force before its coming into force. It questioned China’s
claim to historical rights in the region, and established that China’s state practice does not show that China had been
enjoying any historical rights in the South China Sea; rather, it was enjoying the freedom of the high seas and since it did
not create bar to other states’ usage of the same, it could not be understood as being a historical right. Furthermore, since
China’s publishing of the same in its Notes Verbales in 2009, many states have objected to its claim as well. “The Tribunal
concludes that the Convention superseded any historic rights or other sovereign rights or jurisdiction in excess of the limits
imposed therein.”[14] However, the Tribunal also concluded that its jurisdiction was limited to the claims of historic rights on
the maritime region and not to the land masses in the South China Sea, i.e. if it can claim historic rights on any of the islands,
then it may also be able to claim maritime zones (as per the Convention) on the basis of these islands.
Next, the Tribunal looked at Philippines’ submissions 3 to 7, concerning the nature of the features in the South China Sea.
It differentiates between low-tide elevations[15], high-tide features[16] and rocks[17]. In its Award on Jurisdiction, the
Tribunal clarified that:
This is not a dispute concerning sovereignty over the features, notwithstanding any possible question concerning whether
low-tide elevations may be subjected to a claim of territorial sovereignty. Nor is this a dispute concerning sea boundary
delimitation: the status of a feature as a “low-tide elevation”, “island”, or a “rock” relates to the entitlement to maritime zones
generated by that feature, not to the delimitation of such entitlements in the event that they overlap.[18]
The Philippines put forward three categories for classifying low-tide elevations: where a low-tide elevation is located within
12 miles of a high-tide feature[19], where the low-tide elevation is beyond 12 miles but within the state’s exclusive economic
zone or continental shelf[20], and where the low-tide elevation is located beyond the areas of natural jurisdiction[21].
For the purpose of identifying the nature of the features in the South China Sea, the Tribunal relied upon satellite imagery
that had been conducted on the area and direct surveys that had been carried out, by navies or otherwise, in the area, and
relied upon maps that were sufficiently detailed. They chose a certain tidal height to maintain uniformity across the features,
and decided to rely, in cases where there had been significant man-made changes, alterations or construction on the
features, upon maps/imagery/surveys that depicted the features as they had been in their original form.[22]
Again the Tribunal relied upon statements previously made by China to obtain their stance on the nature of the features,
since China had neither submitted any document to the Tribunal nor had it discussed these in its Position Paper.
The Tribunal concluded that Scarborough Shoal, Cuarteron Reef, Fiery Cross Reef, Johnson Reef, McKennan Reef and
Gaven Reef (North) were all found to be high-tide features. The Tribunal further noted that for the purposes of Article 121(3),
the high-tide features at Scarborough Shoal and the reefs were rocks that cannot sustain human human habitation or
economic life of their own and so have no exclusive economic zone or continental shelf. The Tribunal found the same to be
true of the Spratly Islands and so concluded that China, therefore, has no entitlement to any maritime zone in the area of
Mischief Reef or Second Thomas Shoal; they do, however, form part of the exclusive economic zone and continental shelf
of the Philippines as they lie within 200 nautical miles of the Philippines’ coast and there are no overlapping entitlements in
the area with respect to China.
On the contrary, Hughes Reef, Gaven Reef (South), Subi Reef, Mischief Reef and Second Thomas Shoal were all found to
be low-tide elevations, of which Hughes Reef lay within 12 miles of McKennan Reef and Sin Cowe Island, Gaven Reef
(South) lay within 12 miles of Gaven Reef (North) and Namyit Island, and Subi Reef lay within 12 miles of the high-tide
feature of Sandy Cay on the reefs to the west of Thitu.

In the issue of Chinese interference with the living and non-living resources (primarily concerned with fishing practices in
the South China Sea and oil and gas exploration and exploitation) of the Philippines, the Tribunal considered diplomatic
statements from China to the Philippines and regulations related to the matter that China had passed domestically. The
Philippines put forward four contentions related to living resources: China’s prevention of fishing by Philippine vessels at
Mischief Reef since 1995, and at Second Thomas Shoal since 1995, China’s revision of the Hainan Regulation[23] and
China’s moratorium on fishing in the South China Sea in 2012[24]. The Tribunal finds that China had breached Articles
77[25] and 56[26] of the Convention through the operation of its marine surveillance vessels (which interfered with
Philippines’ oil and gas exploration) and through its moratorium on fishing which interfered with the exclusive economic
zone of the Philippines, respectively.
The Tribunal also found China in breach of Article 58 (3)[27] of the Convention, due to its failure to prevent fishing by
Chinese flagged ships in the exclusive economic zone of the Philippines, failing to respect the sovereign rights of the
Philippines over its fisheries in its exclusive economic zone.
Submission 10 of the Philippines related to China’s interference with Philippines’ fishing vessels and practices in the
Scarborough Shoal. While both the states had conflicting views on the situation (China believed that it was Philippines who
was causing the interference) and both claimed historic rights (Philippines distinguished this by clarifying that it only referred
to historic fishing rights) to the region, the Tribunal opined that China was, in fact, in contravention of the Convention by
interfering with the traditional fishing practice of the Philippines in its exclusive economic zone through the deployment of
its official ships in the region. The Tribunal also noted that this decision does not depend on the question of sovereignty,
and that the Tribunal once again refrained from commenting on the matter.
Philippines’ successive contention related to China’s activities on the reefs in the South China Sea, with regards the
practices it had adopted for the purpose of large-scale construction and reclamation at seven locations in the Spratly
Islands[28], and its practices with regards to fishing[29] in the South China Sea. Philippines claimed that China had been
harming and causing damage to the marine environment of the South China Sea through these practices and despite
objections from the surrounding states, China had not ceased its actions. It was also noted that while some of the fishing
ships were not state-appointed ships and were being manned by non-state actors, the Chinese government had neither
condemned their actions nor made any efforts to stop them from proceeding. The Tribunal, assisted by three independent
experts on coral reef biology, expert briefs and satellite imagery, found that China was in breach of the Convention for failing
to stop the fishing vessels from engaging in harmful harvesting practices[30] and also for its island-building activities[31].
The Tribunal further opined that China’s construction on Mischief Reef, without authorization from Philippines was in
violation of Philippines’ sovereign rights in its exclusive economic zone and continental shelf and a breach of the
Convention[32].
The next consideration before the Tribunal was the demeanour of China’s law enforcement vessels at Scarborough
Shoal[33] and the lawfulness of these actions. The Philippines also raised the issue under the relevant provisions of the
Convention on the International Regulations for Preventing of Collisions at Sea, 1972 (COLREGS). The Tribunal found that
China, through the actions of its law enforcement vessels, endangered Philippine vessels and personnel and created a
serious risk of collision and found China in breach of Article 94 of the Convention[34].
The Tribunal, in response to Submission 14 of the Philippines, opined that China had, in the course of the proceedings of
this arbitration, aggravated and extended its disputes with Philippines, through its actions of dredging, artificial island-
building and construction activities[35].
Lastly, the Tribunal did not find it necessary to make any further declaration, owing to the fact that both the parties are
already parties to the Convention and are already obliged to comply with it.
 UNITED NATIONS CONVENTION ON LAW ON THE SEA
(UNCLOS)

The United Nations Convention on the Law of the Sea (UNCLOS) is an international treaty which was adopted and signed
in 1982. It replaced the four Geneva Conventions of April, 1958, which respectively concerned the territorial sea and
the contiguous zone, the continental shelf, the high seas, fishing and conservation of living resources on the high seas.

The Convention has created three new institutions on the international scene :

– the International Tribunal for the Law of the Sea,

– the International Seabed Authority,

– the Commission on the Limits of the Continental Shelf.

IUCN and UNCLOS

The Convention has become the legal framework for marine and maritime activities and IUCN with its partners are
working towards an implementing agreement (UNCLOS IA) that will close important gaps in governance. A positive result
would provide a measure of protection and conservation of Areas Beyond National Jurisdiction (ABNJ) where there is
none at present.

United Nations Convention on the Law of the Sea

The 1982 United Nations Convention on the Law of the Sea (UNCLOS), which came into force on November 16, 1994, is
an international treaty that provides a regulatory framework for the use of the world’s seas and oceans, inter alia, to
ensure the conservation and equitable usage of resources and the marine environment and to ensure the protection and
preservation of the living resources of the sea. UNCLOS also addresses such other matters as sovereignty, rights of
usage in maritime zones, and navigational rights. As of January 10 2014, 166 States have ratified, acceded to, or
succeeded to, UNCLOS. The full text and status of UNCLOS can be accessed through the United Nations Division for
Oceans Affairs and the Law of the Sea.

Part XV of UNCLOS sets forth rules for the resolution of disputes between State Parties arising out of the interpretation or
application of UNCLOS. Pursuant to Article 287(1) of UNCLOS, when signing, ratifying, or acceding to UNCLOS, a State
may make a declaration choosing one or more of the following means for settling such disputes:

 the International Tribunal for the Law of the Sea (ITLOS) in Hamburg, Germany;
 the International Court of Justice in The Hague, The Netherlands;
 ad hoc arbitration (in accordance with Annex VII of UNCLOS); or
 a “special arbitral tribunal” constituted for certain categories of disputes (established under Annex VIII of UNCLOS).

Pursuant to Article 287(3) of UNCLOS, arbitration under Annex VII is the default means of dispute settlement if a State
has not expressed any preference with respect to the means of dispute resolution available under Article 287(1) of
UNCLOS (and has not expressed any reservation or optional exceptions pursuant to Article 298 of UNCLOS). Likewise,
pursuant to Article 287(5) of UNCLOS, if the parties have not accepted the same procedure for the settlement of the
dispute, arbitration under Annex VII is the default means of dispute settlement (again subject to same exceptions or
reservations pursuant to Article 298).

Having administered all but one of the UNCLOS Annex VII arbitrations to date, the PCA has gained unique experience in
dealing with, among other things, diverse organizational, procedural, and substantive issues that may arise in such
arbitrations.

Through an exchange of letters between the Secretary-General of the PCA and the Registrar of ITLOS, the PCA and
ITLOS have agreed to cooperate with respect to relevant legal and administrative matters. Under the arrangement, the
PCA and ITLOS have undertaken to exchange documents, particularly those connected with disputes under Annex VII of
UNCLOS, and to explore cooperation in other areas of interest.