Legal Victory for the Philippines against

China: A Case Study

On 12 July 2016, the Arbitral Tribunal in the South China Sea Arbitration (The

Republic of the Philippines v. The People’s Republic of China) issued a unanimous
award largely favourable to the Philippines. China has rejected the ruling, but it may
nonetheless be a stepping-stone on the way to a peaceful resolution of the conflict.

BACKGROUND OF THE CASE

On 22 January 2013, the Philippines instituted arbitral proceedings against China in a dispute co
respective “maritime entitlements” and the legality of Chinese activities in the South China Sea
by a diplomatic note dated 19 February 2013 addressed to the Philippines, China expressed
the arbitration.

INTERVIEW: “HOW WAS THE PERMANENT COURT OF ARBITRATION INVOLVED?” BY PROF. KOHEN
 In China’s view, the Arbitral Tribunal did not have jurisdiction in the case because China’s acceptance of
dispute settlement under the UN Convention on the Law of the Sea (UNCLOS) – the basis put forward
by the Philippines – was limited and excluded sea boundary delimitations and the determination of
historic titles. Since then, China has continuously refused either to accept or to participate in the arbitral
proceedings initiated by the Philippines. The tribunal, however, did not see this as an obstacle: on 29
October 2015, it delivered its first award finding that it had jurisdiction, and, on 12 July 2016, its award
deciding on the merits of the dispute.

THE 12 JULY 2016 AWARD

The award addresses three main substantive issues: (a) the so-called “nine-dash line”
and China’s claim to historic rights in the South China Sea, (b) the status of certain
maritime features in the South China Sea and (c) the legality of Chinese activities in
the South China Sea. Because of jurisdictional limits, however, the Arbitral Tribunal
did not deal with matters related to territorial sovereignty over the disputed maritime
features between the parties. That means that the tribunal did not decide who owned
the maritime features located in the South China Sea, such as the Spratly Islands,
that are claimed by both China and the Philippines or any other coastal state in the
region. Similarly, the tribunal did not delimit any maritime boundaries between the
Philippines and China in the South China Sea.

THE “NINE-DASH LINE” AND THE ALLEGED CHINESE HISTORIC RIGHTS

The tribunal dealt with the question whether China’s claims to historic rights within the
“nine-dash line” were in conformity with UNCLOS. It first observed that this area – in
which China claimed rights, “formed in the long historical course”, to living and non-
living resources (i.e. fisheries and petroleum resources) – partially overlaps with areas
that would otherwise comprise the exclusive economic zone (EEZ) or the continental
shelf (CS) of the Philippines. In the view of the tribunal, UNCLOS establishes a
comprehensive maritime zones regime and allocates rights in these areas to the
coastal state and other states: in the areas of the EEZ and the CS, the coastal state
enjoys exclusive sovereign rights to the exploitation of living and non-living natural
resources. Concerning the rights of other states in these areas, the tribunal found that
UNCLOS does not permit the preservation of historic rights of any state within the
EEZ or the CS of another state. Therefore, after the entry into force of UNCLOS, the
historic rights that might have existed for China within the “nine-dash line” in areas
that would otherwise include THE PRE-EXISTING HISTORIC RIGHTS NO
LONGER EXIST AS THEY ARE NOT COMPATIBLE WITH UNCLOS.
ACCORDINGLY, THE TRIBUNAL CONCLUDED THAT CHINA’S CLAIMS
WERE CONTRARY TO UNCLOS AND EXCEEDED THE GEOGRAPHIC
LIMITS IMPOSED BY IT. the EEZ or the CS of the Philippines were superseded
by the maritime zones regime created by UNCLOS. That means the pre-existing
historic rights no longer exist as they are not compatible with UNCLOS. Accordingly,
the tribunal concluded that China’s claims were contrary to UNCLOS and exceeded
the geographic limits imposed by it.

THE STATUS OF MARITIME FEATURES

In a next step, the tribunal determined the legal status of certain maritime features
occupied by China in the South China Sea. Determining whether these are “islands",
“rocks", “low-tide elevations” (LTEs) or “submerged banks” is important because,
unlike fully entitled islands, rocks which cannot sustain human habitation or economic
life of their own do not generate an EEZ and a CS. Consequently, rocks do not give
rights to resource exploitation beyond their territorial sea. Furthermore, LTEs or
submerged banks do not generate any maritime zone. The tribunal found most
disputed maritime features not to be capable of generating an EEZ or CS: it
classified Scarborough Shoal as a rock, and among those features in the Spratly
Islands, it found Mischief Reef, Subi Reef and Second Thomas Shoal to be LTEs, and
Johnson Reef, Cuarteron Reef and Fiery Cross Reef to be mere rocks. However,
contrary to the Philippines’ position, the tribunal concluded that Gaven Reef (North)
and McKennan Reef are rocks that are not capable of generating an EEZ or a CS.

The tribunal assessed the status of these features taking into consideration their
natural condition, prior to human modifications. In this respect, THE TRIBUNAL
EMPHASISED THAT CHINA’S CONSTRUCTION OF INSTALLATIONS
AND SIGNIFICANT RECLAMATION WORK AS WELL AS ITS
MAINTENANCE OF MILITARY OR GOVERNMENTAL PERSONNEL OR
CIVILIANS CANNOT ENHANCE A FEATURE’S STATUS FROM ROCK OR
A LTE TO A FULLY ENTITLED ISLAND CAPABLE OF GENERATING AN
EEZ AND A CS. the Tribunal emphasised that China’s construction of installations
and significant reclamation work as well as its maintenance of military or
governmental personnel or civilians cannot enhance a feature’s status from rock or a
LTE to a fully entitled island capable of generating an EEZ and a CS.

CHINESE ACTIVITIES IN THE SOUTH CHINA SEA

The tribunal also ruled on the legality of activities of Chinese officials and Chinese
vessels in the areas of the South China Sea located within the Philippines’ EEZ and
CS. It concluded that China breached the provisions of UNCLOS, in particular by (a)
temporarily prohibiting fishing in areas of the South China Sea falling within the
Philippines’ EEZ, (b) failing to prevent Chinese vessels from fishing in the Philippines’
EEZ at Mischief Reef and Second Thomas Shoal and (c) preventing Filipino
fishermen from engaging in traditional fishing at Scarborough Shoal. Regarding
China’s construction of artificial islands, installations and structures at Mischief Reef –
a LTE which is part of the Philippines’ EEZ and CS – without the authorisation of the
Philippines, the tribunal also found China to have violated UNCLOS.

In addition, with respect to the protection and preservation of the marine environment
in the South China Sea, the tribunal found that China breached UNCLOS since it
failed to prevent fishermen from Chinese flagged vessels from harvesting (a)
endangered species on a significant scale and (b) in such a manner as to destroy the
coral reef ecosystem. Furthermore, the tribunal held that China’s land reclamation and
construction of artificial islands, installations and structures in the Spratly Islands
caused severe, irreparable harm to the coral reef ecosystem.

THE AFTERMATH OF THE TRIBUNAL’S DECISION

The Philippines welcomed the award, which vindicated most of its claims, and stated
that it remained open to negotiate with China. Conversely, China rejected the decision
as illegal, null and void and therefore without any binding effect on itself. Other
countries, including the United States, Vietnam, Australia and Japan, backed the
Philippines and called on China to respect the tribunal’s decision. On the other hand,
Cambodia supported China’s non-acceptance of the award. ASEAN members issued
a joint communiqué reaffirming the need to avoid actions that might escalate tensions
in the South China Sea and to seek the peaceful resolution of disputes in accordance
with international law, including UNCLOS.

The tribunal’s ruling is certainly a legal victory for the Philippines over China as the
judges agreed unanimously on almost all the questions submitted by the Philippines,
including a declaration from the tribunal that China is obliged to comply with UNCLOS
and that the award is legally binding on China. THE TRIBUNAL’S RULING IS
CERTAINLY A LEGAL VICTORY FOR THE PHILIPPINES OVER CHINA
AS THE JUDGES AGREED UNANIMOUSLY ON ALMOST ALL THE
QUESTIONS SUBMITTED BY THE PHILIPPINES, INCLUDING A
DECLARATION FROM THE TRIBUNAL THAT CHINA IS OBLIGED TO
COMPLY WITH UNCLOS AND THAT THE AWARD IS LEGALLY BINDING
ON CHINA.  There is no enforcement mechanism as such under UNCLOS in the
event that China fails to comply with the tribunal’s decision, but the Philippines could
either resort to diplomatic ways (bilateral or multilateral negotiations within the
framework of international organisations) or have recourse to further arbitration under
UNCLOS. Moreover, other states and non-state actors could take further actions (i.e.
economic sanctions) to put pressure on Beijing to shift its behaviour. But, beyond
China’s non-compliance attitude, the award has a value for the states bordering the
South China Sea and the rest of the international community for two reasons: (a) the
tribunal’s ruling clarified the respective rights and obligations of both China and the
Philippines in the South China Sea, thereby facilitating their further relations, and (b)
the Tribunal’s findings might have an impact on policy considerations and decision-
making of other states as it clarified important legal issues in UNCLOS.

To sum up, it is too early to tell to what extent the tribunal’s decision will actually play
a role at both regional and international levels. Nonetheless, what we do know is that,
at the moment, things are moderately quiet in the South China Sea comparing to two
years ago. Whether this situation could be linked to the tribunal’s ruling is open for
discussion. In the meanwhile, it is hard to believe, for instance, that countries such as
Japan with Okinotorishima or the United States with Johnson’s Island will withdraw
their claims over features that they assert to be fully entitled islands and not mere
rocks. In addition, Vietnam continues its land reclamation and construction of two
 large hangars on Spratly Island in response to China’s construction of military facilities
in the Spratlys. Thus, while the tribunal’s intention appeared to be that of making a
path forward to solve the problem between China and the Philippines, the long-term
effects of its award are still to be seen in the incoming years.

By Christine Pichel Medina,

PhD graduate in 2017,
Department of International Law,
The Graduate Institute, Geneva