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Legal Victory for the Philippines against
China: A Case Study
The conflict over the South China Sea is
not just one of military might and political
clout, but also one of legal strategies. The
Philippines especially has sought to
counter Chinese moves with a turn to
international adjudication, and with
significant success.
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 concerning their
respective “maritime entitlements” and the
legality of Chinese activities in the South
China Sea. In response, by a diplomatic
note dated 19 February 2013 addressed to
the Philippines, China expressed its
rejection of the arbitration.
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.
(a) the so-called “nine-dash line” and
China’s claim to historic rights 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 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.
(b) the status of certain maritime features
in the South China Sea and
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
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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.
(c) the legality of Chinese activities in the
South China Sea.
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.
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
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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.