Tribunal Issues Landmark Ruling in

South China Sea Arbitration

The wait is over: a judgment has been issued in the Philippines v. China South China
Sea arbitration. A five-judge tribunal constituted under the Permanent Court of
Arbitration (PCA) in The Hague has released its much-anticipated Award concerning
the Philippines’ challenge to a number of China’s maritime claims and activities in the
region. The Philippines initiated the arbitration in January 2013 under the dispute
settlement procedures of Annex VII to the 1982 United Nations Convention on the Law
of the Sea (UNCLOS).

The unanimous, 501-page Award and the eleven-page press release from the PCA can be
found here.

Bottom line: A nearly across-the-board win for the Philippines, and a searing verdict on
the lawfulness of China’s artificial island construction and other actions in the South
China Sea.

Summary of Key Claims and Holdings

The Philippines’ claims fell into four general categories. The ruling of the Tribunal on
each category of claims is summarized below:

1. The broadest claim was a challenge to China’s “nine-dash line” covering most of the
South China Sea. China has never clarified whether the line represents a claim to the
islands within the line and their adjacent waters; a boundary of national sovereignty
over all the enclosed waters (including, but not limited by, the land features inside the
line); or a “historic” claim of sovereignty or some other set of historic rights to the
maritime space within the line. The Philippines sought a declaration that the countries’
respective rights and obligations regarding the waters, seabed, and maritime features of
the South China Sea are governed by UNCLOS. As such, China’s claims based on any
“historic rights” to waters, seabed, and subsoil within the nine-dash line are contrary to
UNCLOS and invalid. (See Table: Claims 1 and 2)

Holding: UNCLOS “comprehensively” governs the parties’ respective rights to

maritime areas in the South China Sea. Therefore, to the extent China’s nine-dash line is
a claim of “historic rights” to the waters of the South China Sea, it is invalid.

Reasoning: Whatever historic rights China may have had were extinguished when
UNCLOS was adopted, to the extent those rights were incompatible with UNCLOS.

2. The Philippines sought a determination as to whether certain land features in the

Spratly Islands claimed by both China and the Philippines are properly characterized as
islands, rocks, low tide elevations (LTEs), or submerged banks. Under UNCLOS, an
“island” generates both a territorial sea of 12 nautical miles and an exclusive economic
zone (EEZ) of up to 200 nautical miles, subject to delimitation of a maritime boundary
with any other countries’ overlapping territorial seas or EEZs. A “rock” is entitled to a
territorial sea no greater than 12 nautical miles, but not an EEZ. Low Tide Elevation s
and submerged banks do not generate any such entitlements. (See Table:
Claims 3, 4, 6, and 7)

Holding: None of the features in the Spratly Islands generates an EEZ, nor can the
Spratly Islands generate an EEZ collectively as a unit. As such, the Tribunal declared
certain areas are within the Philippines’ EEZ and not overlapped by any possible
Chinese entitlement.

Reasoning: The baseline of analysis is what the features can sustain in their “natural
condition” (i.e., not after construction of artificial islands, installation of desalination
plants, etc.). Based on historical evidence, none of the features in the Spratly Islands can
sustain either a stable community of people or economic activity that is not dependent
on outside resources or purely extractive in nature. The current presence of personnel
on the features is dependent on outside support and does not reflect the capacity of the
features in their natural condition.

3. The Philippines sought a declaration that China violated UNCLOS by interfering with
the Philippines’ rights and freedoms within its EEZs. This includes preventing
Philippine fishing around Scarborough Shoal, violating UNCLOS’s environmental
protection provisions through construction and fishing activities that have harmed the
marine environment (including at Scarborough Shoal, Second Thomas Shoal, and
Mischief Reef), and by dangerously operating law enforcement vessels around
Scarborough Shoal. (See Table: Claims 5, 8, 9, 10, 11, 12, and 13)

Holding: China violated the Philippines’ sovereign rights in its EEZ. It did so by
interfering with Philippine fishing and hydrocarbon exploration; constructing artificial
islands; and failing to prevent Chinese fishermen from fishing in the Philippines’ EEZ.
China also interfered with Philippine fishermen’s traditional fishing rights near
Scarborough Shoal (without prejudice to the question of sovereignty over Scarborough
Shoal). China’s construction of artificial islands at seven features in the Spratly Islands,
as well as illegal fishing and harvesting by Chinese nationals, violate UNCLOS
obligations to protect the marine environment. Finally, Chinese law enforcement vessels
unlawfully created a serious risk of collision by physically obstructing Philippine vessels
at Scarborough Shoal in 2012.

Reasoning: This set of holdings depended on the Tribunal finding that certain areas are
within the Philippines’ EEZ and not subject to possible overlapping Chinese
entitlements. It also depended on finding that activities such as island construction
are, in accordance with China’s own public statements, not “military activities” and
therefore not excluded from jurisdiction under UNCLOS. Once this was established, the
Tribunal considered Chinese activities in the relevant areas and found that China had
(a) interfered with Philippine petroleum exploration at Reed Bank, (b)
purported to prohibit fishing by Philippine vessels within the Philippine
EEZ, (c) protected and failed to prevent Chinese fishermen from fishing
within the Philippine EEZ at Mischief Reef and Second Thomas Shoal, and
(d) constructed artificial islands/installations at Mischief Reef without the
Philippines’ authorization. As for Scarborough Shoal, regardless of who has
sovereignty, both Philippine and Chinese fishermen have “traditional fishing rights” at
the Shoal that were not extinguished by UNCLOS, and China violated the Philippines’
rights by entirely preventing Filipino fishermen from fishing near Scarborough Shoal
after May 2012. In addition, Chinese artificial island construction has caused “severe
harm to the coral reef environment” and China has failed to stop its nationals from
engaging in “harmful” and “destructive” harvesting and fishing of endangered sea
turtles, coral, and giant clams in violation of UNCLOS. Finally, Chinese law enforcement
vessels violated maritime safety obligations by creating a serious risk of collision on two
occasions in April and May 2012 during the Scarborough Shoal standoff.

4. The Philippines sought a declaration that China’s recent actions, specifically its land
reclamation and construction of artificial islands in the Spratly Islands after the
arbitration was commenced, violated the obligations UNCLOS places on states to refrain
from conduct that “aggravates and extends” a dispute while dispute resolution
proceedings are pending. (See Table: Claim 14)

Holding: China has aggravated and extended the disputes through its dredging,
artificial island-building, and construction activities.

Reasoning: While these proceedings were pending, China has built a large island on
Mischief Reed, an LTE within the Philippines’ EEZ; caused irreparable harm to the
marine ecosystem; and permanently destroyed evidence of the natural condition of the
features at issue.

Table of Philippine Claims and Tribunal Rulings*

Submission Jurisdictional
Philippines’ Claim Merits Rulin
Number Ruling
Yes: UNCLOS
(Deferred to comprehensively
China’s maritime entitlements in South merits stage)
1 China Sea may not exceed those established allocates rights to
by UNCLOS Jurisdiction maritime areas
granted
Philippines win
2 China’s “nine-dash line” claim is invalid to (Deferred to Yes: There is
the extent it exceeds the limits established by merits stage)
UNCLOS no legal basis for
Jurisdiction
granted
 China to claim

historic rights t

o waters in the Sout

China Sea (so, to th
extent that is what t
nine-dash line mean
invalid)

Philippines win
Yes: Scarborough

Shoal is a rock
Scarborough Shoal generates no EEZ or Jurisdiction
3 that generates
continental shelf granted
no EEZ

Philippines win
Yes: Mischief Reef,
Mischief Reef, Second Thomas Shoal, and
Second Thomas Sho
Subi Reef are all LTEs that do not generate Jurisdiction
4 and Subi Reef are L
territorial seas or EEZs, and are not subject granted
to appropriation
Philippines win
Yes: Mischief Reef a
(Deferred to Second Thomas Sho
Mischief Reef and Second Thomas Shoal are merits stage) part of the EEZ and
5 part of the Philippines’ EEZ and continental continental shelf of
shelf Jurisdiction Philippines
granted
Philippines win
No: Both Gaven and
McKennan Reef

are above water at h

Gaven Reef and McKennan Reef (including
tide;
Hughes Reef) are LTEs that generate no
Jurisdiction
6 maritime entitlements, but may be used to
granted they are rocks that
determine baselines to measure territorial
generate territorial
sea
but no EEZ or conti
shelf

Philippines loss
7 Johnson Reef, Cuarterton Reef, and Fiery Jurisdiction Yes: Johnson Reef,
 Cuarterton Reef, an
Fiery Cross Reef are
Cross Reef generate no entitlements to EEZ that generate no EE
granted
or continental shelf continental shelf

Philippines win
Yes: China has i

(Deferred to nterfered with Phili

China has interfered with the Philippines’
merits stage) sovereign rights to f
exercise of sovereign rights over living and
8 and hydrocarbon
non-living resources within its EEZ and
Jurisdiction exploration within i
continental shelf
granted EEZ

Philippines win
Yes: China failed to
(Reserved to
prevent Chinese
China has failed to prevent its nationals and merits stage)
fishermen from fish
9 vessels from exploiting the living resources
within the Philippin
in the Philippines’ EEZ Jurisdiction
granted
Philippines win
Yes: China violated
China has prevented Philippine fishermen Philippines’ “traditi
from pursuing their livelihoods through Jurisdiction fishing rights” at
10
traditional fishing activities around granted Scarborough Shoal
Scarborough Shoal
Philippines win
Yes: China

engaged in
environmentally
China has violated UNCLOS’s environmental
Jurisdiction harmful
11 protection obligations at Scarborough Shoal
granted fishing/harvesting
and Second Thomas Shoal
practices at Scarbor
Shoal and Second
Thomas Shoal

Philippines win
12 China’s occupation and construction on (Deferred to Yes: Environmenta
Mischief Reef violate UNCLOS provisions on merits stage) protection provision
artificial islands and environmental were violated at Mis
protection, and are unlawful acts of Jurisdiction Reef;
attempted appropriation granted
artificial island
construction violate
 Philippine sovereig
rights within its

EEZ; t

he “appropriation”
is moot because Mi
Reef is an LTE not
capable of appropri

Philippines win
Yes: China violated
China has violated UNCLOS by dangerously UNCLOS and other
operating law enforcement vessels creating Jurisdiction provisions on marit
13
serious risk of collision near Scarborough granted safety
Shoal
Philippines win
Yes: Although there
jurisdiction over dis
involving military
China has unlawfully aggravated and activities such as th
extended the dispute by interfering with the (Deferred to Second Thomas Sho
Philippines’ rights of navigation near merits stage) standoff, China has
Scarborough Shoal, preventing the rotation aggravated/extende
14
and resupply of Philippine personnel Jurisdiction disputes through re
stationed at Second Thomas Shoal, and granted in part, large-scale land
endangering the health of the personnel denied in part reclamation and art
there island construction
Philippine EEZ

Philippines win
Qualified yes: This
(Deferred to
Going forward China shall respect the rights simply asks China t
merits stage)
and freedoms of the Philippines under what it is required t
15
UNCLOS and comply with its duties under under UNCLOS;
Jurisdiction
UNCLOS therefore, no furthe
granted
statement is necess

* See p. 34-35 of Tribunal’s Award on Jurisdiction and Admissibility; p. 5 of the PCA’s

12 July 2016 Press Release; and p. 4 of this paper by Paul Gewirtz.

Initial Takeaways

1. Not many people predicted that the Philippines would all but run the table in this
case. It’s hard to imagine a much more favorable outcome for their legal team.
2. One of the ironies of the Award is that China has vociferously argued in public
statements that it is not “militarizing” the South China Sea and that its actions there are
for civilian purposes. Those claims turned out to be crucial to the Tribunal’s conclusion
that it had jurisdiction to consider the legality of certain Chinese actions such as
construction of artificial islands in the South China Sea, because Article 298(1)(b) of
UNCLOS excludes disputes concerning “military activities” from compulsory dispute
settlement. Despite China’s non-participation in the proceedings, the Tribunal went out
of its way to review the December 2014 position paper issued by China’s Ministry of
Foreign Affairs as well as numerous public statements of Chinese leaders. This was an
example of where those public statements worked against China’s legal interests in the
arbitration.

3. The Tribunal rejected the possibility that China could claim the entirety of the Spratly
Islands as a single archipelagic feature, as suggested in recent statements by the
Ministry of Foreign Affairs as well as a white paper issued last month by the Chinese
Society of International Law. As Julian noted earlier, this was a bit of a preemptory legal
strike against “any Chinese attempt to draw ‘straight baselines’ around the Spratlys and
thus treat the whole area as a single entity for generating maritime rights.”

4. Of all the rulings on the status of features in the Spratly Islands, perhaps none will
generate more discussion than the conclusion that Itu Aba (Taiping Island) is a rock and
not an island. Many observers thought that Itu Aba, the largest naturally occurring land
feature in the Spratly Islands, had the strongest claim to being deemed an island entitled
to both a territorial sea and an EEZ. The concepts the Tribunal employed to determine
what makes something a “rock[] which cannot sustain human habitation or economic
life of [its] own” are likely to guide future legal determinations of this character.

It will take time to digest this portion of the opinion, but the Tribunal’s “habitability and
economic life” factors seem to include:

 The objective capacity of the feature in its natural condition (i.e., “without
external additions or modifications” and without outside support), to sustain,
over an extended period of time, either

o (a) a stable community of people for whom the feature constitutes a home
and on which they can remain, or
o (b) economic activity that is not
 (i) dependent on outside resources, or
 (ii) purely extractive in nature without the involvement of a local
population.
 Factors contributing to the natural capacity of a feature to do so “include the
presence of water, food, and shelter in sufficient quantities to enable a
group of persons to live on the feature for an indeterminate period of
time.”
 In assessing these “capacity” factors, the Tribunal stated, “the most reliable
evidence of the capacity of a feature will usually be the historical use to which it
 has been put.” Applying that standard here, the Tribunal saw “no indication that
anything fairly resembling a stable human community has ever formed on the
Spratly Islands. Rather, the islands have been a temporary refuge and base of
operations for fishermen and a transient residence for labourers engaged in
mining and fishing.”

5. Given its sweeping conclusions favoring the Philippines, the Award may seem to have
nothing positive in it for China. But the Tribunal offered an important qualification to
its judgment, and perhaps a bit of an olive branch toward the end of a decision it knew
would not be well received in Beijing. We should not assume, said the Tribunal, that
these disputes are the product of bad faith on the part of the PRC; rather, they are the
result of basic disagreements about respective rights and obligations and the
applicability of UNCLOS. From paragraph 1198 of the Award:

“The root of the disputes presented by the Philippines in this arbitration lies not in any
intention on the part of China or the Philippines to infringe on the legal rights of the
other, but rather—as has been apparent throughout these proceedings—in
fundamentally different understandings of their respective rights under the Convention
in the waters of the South China Sea. In such circumstances, the purpose of dispute
resolution proceedings is to clarify the Parties’ respective rights and obligations and
thereby to facilitate their future relations in accordance with the general obligations of
good faith that both governments unequivocally recognise.”

6. Where does this leave us? China’s position all along with respect to these proceedings
can be summed up as “no acceptance, no participation, no recognition, and no
implementation.” The PRC Ministry of Foreign Affairs predictably wasted no time
releasing a statement declaring that “the award is null and void and has no binding
force.” The Philippine Foreign Affairs Secretary welcomed the decision, stating: “The
Philippines strongly affirms its respect for this milestone decision as an important
contribution to ongoing efforts in addressing disputes in the South China Sea.” No
surprises here, especially given that the Tribunal resolved virtually all the key issues in
favor of the Philippines. For its part, the U.S. State Department issued a
measured statement remarking that “[t]he decision today by the Tribunal in the
Philippines-China arbitration is an important contribution to the shared goal of a
peaceful resolution to disputes in the South China Sea.”

As these statements suggest, the issuance of this Award by no means puts to rest the
disputes or the tensions in the South China Sea. The arbitration was never going to
resolve issues of sovereignty over the islands and rocks in the South China
Sea, because disputes over territorial sovereignty are beyond the
jurisdiction of an UNCLOS Tribunal. And since the Tribunal has no power to
enforce its nominally binding decision, questions now turn to what any form of
“implementation” might look like and the effect this ruling will have on future
negotiations over territorial sovereignty.
China, the Philippines, ASEAN countries, and the United States face a range of strategic
questions about the best way forward. Will Beijing demonstrate its disregard for the
decision by engaging in land reclamation at Scarborough Shoal or declaring an Air
Defense Identification Zone in the South China Sea, as some have predicted? Will it
continue to insist on conditioning any future bilateral negotiations with the
administration of new Philippine President Rodrigo Duterte on his government’s
rejection of the Tribunal’s Award? Will it worry that some of these behaviors will push
the Philippines and other ASEAN nations closer to the United States? Will we see the
U.S. Navy conducting “pure” freedom of navigation operations (FONOPs) within 12
nautical miles of the Spratly Island features the Tribunal says are not entitled to a
territorial sea?

There is much to digest here and much more left to shake out. National governments
will be under pressure to respond quickly, but let’s hope they first take the time to
carefully read the Tribunal’s mammoth 501-page decision.