The State and Its Elements

An excerpt from Joaquin G. Bernas, The 1987 Constitution of the

Republic of the Philippines: A Commentary, 2009 Edition. The following has
been formatted for this course.

STATE: DEFINITION AND ELEMENTS

The Philippines is a state and all that being a state means in the
international scene:

The states are the repositories of legitimated authority over peoples

and territories. It is only in terms of state powers, prerogatives, jurisdictional
limits and law-making capabilities that territorial limits and jurisdiction,
responsibility for official actions, and a host of other questions of co-
existence between nations can be determined.

It is by virtue of their law-making power and monopoly that states

enter into bilateral and multilateral compacts, that wars can be started or
terminated, that individuals can be punished or extradited.

States come in various shapes and sizes and vary immensely in their
cultures, forms of government, natural resources, language and a host of
other attributes. But custom has come to recognize the essential attributes
which make an entity a state, whatever its shape or size or the color of its
inhabitants might be. These were summed up in the Montevideo Convention
of 1933 which said in Article I: "The state as a person of international law
should possess the following qualifications: a) a permanent population; b) a
defined territory; c) government; and d) capacity to enter into relations with
other states."

The definition of the concept "state" which has found currency among
Philippine writers is this: it is a community of persons more or less
numerous, permanently occupying a definite portion of territory,
independent of external control, and possessing an organized government
to which the great body of inhabitants render habitual obedience.

Commentators, following the Montevideo Convention of 1933, break

down the concept into four elements: people, territory, sovereignty,
government.

Commentators are also in the habit of distinguishing “state” from

“nation” and it is pointed out that the state is a legal concept while a nation is
a racial or ethnic concept. While the distinction may be useful for purposes
of political sociology, it is of little consequence for purposes of
constitutional law. The 1935 and 1973 Preambles themselves spoke of the
“patrimony of our nation” and it is not to be supposed that “nation” in this
context should be limited to one racial or ethnic group.

It would have been awkward for the Constitution to have said “state of
the State”; but if it had so stated, the sense would have been the same.

Similarly, the word “national” appears in the 1987 Constitution, as it did

in the 1973, in a context that does not limit the word to an ethnic concept.
The legislature, under the original 1973 Constitution, was the National
Assembly. Article XII is entitled “National Economy and Patrimony.”
 For purposes of the Constitution, therefore, the word state is
interchangeable with nation. In fact, a decision of the Supreme Court,
discussing what makes a foreign country a state in the legal sense, used
nation and state interchangeably. The Supreme Court said:

It does not admit of doubt that if a foreign country is to be

identified with a state, it is required in line with Pound’s
formulation that it be a politically organized sovereign
community independent of outside control bound by ties of
nationhood, legally supreme within its territory, acting through a
government functioning under a regime of law. It is thus a
sovereign person with the people composing it viewed as an
organized corporate society under a government with the legal
competence to exact obedience to its commands. It has been
referred to as a body-politic organized by common consent for
mutual defense and mutual safety and to promote the general
welfare. Correctly, it has been described by Esmein as “the
juridical personification of the nation.” This is to view it in the
light of its historical development. The stress is on its being a
nation, its people occupying a definite territory, politically
organized, exercising by means of its government its sovereign
will over the individuals within it and maintaining its separate
international personality. Laski could speak of it then as a
territorial society divided into government and subject, claiming
over its allotted area a supremacy over all other institutions.
Mclver similarly would point to the power entrusted to its
government to maintain within its territory the conditions of a
legal order and to enter into international relations. With the
latter requisite satisfied, international law does not exact
independence as a condition of statehood. So Hyde did opine.

PEOPLE
 As an element of a state, “people” simply means a community of
persons sufficient in number and capable of maintaining the continued
existence of the community and held together by a common bond of law. It
is of no legal consequence if they possess diverse racial, cultural, or
economic interests.

The word “people” appears several times in the Constitution. The

Preamble attributes the authorship of the Constitution to “the sovereign
Filipino people.” Article II mentions people several times. The Bill of Rights
also uses the word several times. The meaning of the word in each case
depends on the context where it is found.

The second sentence of Section 1 says that sovereignty “resides in the

people and all government authority emanates from them.” The word
“people” in this context has reference to the segment of the political society
wherein legal sovereignty lies. Hence, as will be shown later, it has reference
to the electorate or to that segment of the political community which can
establish or alter the fundamental law.

TERRITORY

A definite territory, consisting of land and waters and the air space
above them and the submarine areas below them, is another essential
element of the modern state. And as the Restatement (Third) on the Foreign
Relations Law of the United States explains: “An entity may satisfy the
territorial requirement for statehood even if its boundaries have not been
finally settled, if one or more of its boundaries are disputed, or if some of its
territory is claimed by another state. An entity does not necessarily cease to
be a state even if all its territory has been occupied by a foreign power or if it
has otherwise lost control of its territory temporarily.”

The extent of Philippine territory is defined in Article I of the

Constitution. The character of the power which the Philippines has over its
territory was the subject of Reagan v. Commissioner of Internal Revenue.
Petitioner in this case disputed the payment of the income tax assessed on
him by the respondent on a sale of an automobile transacted at the Clark
Field Air Base at Pampanga. His contention was that the United States
Military Base was outside Philippine territory. The Court, rejecting his claim,
said:

Nothing is better settled than that the Philippines being

independent and sovereign, its authority may be exercised over
its entire domain. There is no portion thereof that is beyond its
power. Within its limits, its decrees are supreme, its commands
paramount. Its laws govern therein, and everyone to whom it
applies must submit to its terms. That is the extent of its
jurisdiction, both territorial and personal. Necessarily, likewise, it
has to be exclusive. If it were not thus, there is a diminution of its
sovereignty.

It is to be admitted that any state may, by its consent,

express or implied, submit to a restriction of its sovereign rights.
There may thus be a curtailment of what otherwise is a power
plenary in character. That is the concept of sovereignty as auto-
limitation, which, in the succinct language of Jellinek, “is the
property of a state-force due to which it has the exclusive
capacity of legal self-determination and self-restriction.” A state
then, if it chooses to, may refrain from the exercise of what
otherwise is illimitable competence.
 Its laws may as to some persons found within its territory
no longer control. Nor does the matter end there. It is not
precluded from allowing another power to participate in the
exercise of jurisdictional right over certain portions of its
territory. If it does so, it by no means follows that such areas
become impressed with an alien character. They retain their
status as native soil. They are still subject to its authority. Its
jurisdiction may be diminished, but it does not disappear. So it is
with the bases under lease to the American armed forces by
virtue of the military bases agreement of 1947. They are not and
cannot be foreign territory.

Decisions coming from petitioner’s native land, penned by

jurists of repute, speak to that effect with impressive unanimity.
We start with the citation from Chief Justice Marshall,
announced in the leading case of Schooner Exchange v.
M’Faddon, an 1812 decision: “The jurisdiction of the nation
within its own territory is necessarily exclusive and absolute. It is
susceptible of no limitation not imposed by itself. Any restriction
upon it, deriving validity from an external source, would imply a
diminution of its sovereignty to the extent of the restriction, and
an investment of that sovereignty to the same extent in that
power which could impose such restriction.” After which came
this paragraph: “All exceptions, therefore, to the full and
complete power of a nation within its own territories, must be
traced up to the consent of the nation itself. They can flow from
no other legitimate source.”

Chief Justice Taney, in an 1857 decision, affirmed the

fundamental principle of everyone within the territorial domain
of a state being subject to its commands: “For undoubtedly
every person who is found within the limits of a government,
whether for temporary purposes or as a resident, is bound by its
laws.” It is no exaggeration then for Justice Brewer to stress that
the United States government “is one having jurisdiction over
every foot of soil within territory, and acting directly upon each
[individual found therein]; x x x.”

Not too long ago, there was a reiteration of such a view,

this time from the pen of Justice Van Devanter. Thus, “It now is
settled in the United States and recognized elsewhere that the
territory subject to its jurisdiction includes the land areas under
its dominion and control the ports, harbors, bays, and other
enclosed arms of the sea along its coast, and a marginal belt of
the sea extending from the coast line outward a marine league,
or 3 geographic miles.” He could cite moreover, in addition to
many American decisions, such eminent treatise writers as Kent,
Moore, Hyde, Wilson, Westlake, Wheaton and Oppenheim.

As a matter of fact, the eminent commentator Hyde in his

three-volume work on International Law, as interpreted and
applied by the United States, made clear that not even the
embassy premises of a foreign power are to be considered
outside the territorial domain of the host state. Thus: “The
ground occupied by an embassy is not in fact the territory of the
foreign State to which the premises belong through possession
or ownership. The lawfulness or unlawfulness of acts there
committed is determined by the territorial sovereign. If an
attache commits an offense within the precincts of an embassy,
his immunity from prosecution is not because he has not
violated the local law, but rather for the reason that the individual
is exempt from prosecution. If a person not so exempt, or whose
immunity is waived, similarly commits a crime therein, the
territorial sovereign, if it secures custody of the offender, may
subject him to prosecution, even though its criminal code
normally does not contemplate the punishment of one who
commits an offense outside the national domain. It is not
believed, therefore, that an ambassador himself possesses the
right to exercise jurisdiction, contrary to the will of the State of
his sojourn, even within his embassy with respect to acts there
 committed. Nor is there apparent at the present time any
tendency on the part of States to acquiesce in his exercise of it.”

[Instructor’s note: For a thorough understanding of the extent of

Philippine territory in the context of the United Nations Convention on the Law
of the Sea (UNCLOS) and Republic Act No. 9522, the Philippine baselines law,
student is referred to the case of Magallona v. Ermita, G.R. No. 187167, August
16, 2011]

GOVERNMENT

Government, as an element of a state, is defined as “that institution or

aggregate of institutions by which an independent society makes and
carries out those rules of action which are necessary to enable men to live in
a social state, or which are imposed upon the people forming that society by
those who possess the power or authority of prescribing them.” Section 2 of
the Revised Administrative Code (1917) defined the “Government of the
Republic of the Philippines” thus:

The Government of the Philippine Islands is a term which refers

to the corporate governmental entity through which the
functions of government are exercised throughout the Philippine
Islands, including, save as the contrary appears from the
context, the various arms through which political authority is
made effective in said Islands, whether pertaining to the central
Government or to the provincial or municipal branches or other
form of local government.

On the national scale, therefore, the term “government of the

Philippines” refers to the three great departments — legislative, executive,
and judicial — mandated by the Constitution, and on the local level, it means
the regional, provincial, city, municipal and barrio governments. It does not
include government entities which are given a corporate personality
separate and distinct from the government and which are governed by the
corporation law. Moreover, for purposes of international law, it is the
national government that has legal personality and it is the national
government that is internationally responsible for the actions of other
agencies and instrumentalities of the state.

The concept of government should be distinguished from

administration. Government is the institution through which the state
exercises power; administration, on the other hand, consists of the set of
people currently running the institution. Administrations change without a
change in either state or government. The transitions from the 1935
Constitution to the 1973 Constitution to the 1987 Constitution involved
changes of government but not of state. The transition from President
Estrada to President Arroyo did not involve a change of government but only
of administration.

The functions of government may be classified into constituent and

ministrant functions. The former are the compulsory functions which
constitute the very bonds of society. President Wilson’s enumeration of the
constituent function of government was adopted in Bacani v. NACOCO. They
are:
(1) The keeping of order and providing for the protection of
persons and property from violence and robbery.
(2) The fixing of the legal relations between man and wife
and between parents and children.
(3) The regulation of the holding, transmission, and interchange
of property, and the determination of its liabilities for debt
or for crime.
 (4) The determination of contract rights between individuals.
(5) The definition and punishment of crime.
(6) The administration of justice in civil cases.
(7) The determination of the political duties, privileges,
and relations of citizens.
(8) Dealings of the state with foreign powers: the preservation
of the state from external danger or encroachment and the
advancement of its international interest.

Ministrant functions are the optional functions of government

intended for achieving a better life for the community. “The principles for
determining whether or not a government shall exercise certain of these
optional functions are: (1) that a government should do for the public
welfare those things which private capital would not naturally undertake,
and (2) that a government should do those things which by its very nature it
is better equipped to administer for the public welfare than is any private
individual or group of individuals.”

For the purpose of the decision in Bacani, the disquisition on the

functions of government was really of little moment. The issue in the case
was whether NACOCO was part of “government” or not. And since NACOCO
was a corporation with personality distinct from the government, it was
clearly not part of the government and could not therefore claim the
privileges which flow from sovereignty. When, however, government
chooses to operate not through a government-owned corporation but
through an unincorporated agency, the distinction between constituent and
ministrant functions can be useful. The concepts, however, seem to belong
more to the field of political science than to law. Law prefers to use the term
governmental and proprietary.
 Whether one, however, uses the terms constituent and ministrant or
governmental and proprietary, what is important to remember is that the
enumeration of specific government functions under these headings cannot
be static. This was emphasized in the case of ACCFA v. CUGCO. At issue
was the characterization of the functions of a government agency charged
with the implementation of the land reform program. The function, the Court
said, may not strictly be “constituent” in the sense of Bacani, but the
compelling urgency with which the Constitution speaks of social justice
does not leave any doubt that land reform is not an optional but a
compulsory function of sovereignty. In the language of Justice Makalintal:

The growing complexities of modem society, however,

have rendered this traditional classification of the functions of
government quite unrealistic, not to say obsolete. The areas
which used to be left to private enterprise and initiative and
which the government was called upon to enter optionally, and
only “because it was better equipped to administer for the public
welfare than is any private individual or group of individuals,”
continue to lose their well-defined boundaries and to be
absorbed within activities that the government must undertake
in its sovereign capacity if it is to meet the increasing social
challenges of the times. Here as almost everywhere else the
tendency is undoubtedly towards a greater socialization of
economic forces. Here of course this development was
envisioned, indeed adopted as a national policy, by the
Constitution itself in its declaration of principle concerning the
promotion of social justice.

Among more recent decisions, housing has been found to be a

governmental function since housing is considered an essential service. But
undertaking to supply water for a price, as does the government corporation
National Irrigation Authority, is considered a trade and not a governmental
activity.

SOVEREIGNTY

A final essential element of statehood according to the Montevideo

Convention is capacity to conduct international relations. “An entity is not a
state unless it has competence, within its own constitutional system, to
conduct international relations with other states, as well as the political,
technical and financial capabilities to do so. An entity that has the capacity
to conduct foreign relations does not cease to be a state because it
voluntarily turns over to another state control of its foreign relations, as in
the ‘protectorates’ of the period of colonialism, the case of Liechtenstein, or
the ‘associated states’ of today. States do not cease to be states because
they have agreed not to engage in certain international activities or have
delegated authority to do so to a ‘supranational’ entity, e.g., the European
Communities. Clearly, a state does not cease to be a state if it joins a
common market.”

This capacity to conduct international relations is an aspect of

sovereignty which the Constitution asserts in Section 1, Article II. The
assertion of sovereignty was already made in the 1935 Constitution. But the
Philippines did not begin to conduct its foreign relations until after it became
independent from the United States in 1946. By way of exception, however,
the Philippines became signatory to the United Nations Charter in 1945 even
before it became independent.
 Section 1, Article II, says: “Sovereignty resides in the people and all
government authority emanates from them.” Sovereignty in this sentence
therefore can be understood as the source of ultimate legal authority. Since
the ultimate law in the Philippine system is the constitution, sovereignty,
understood as legal sovereignty, means the power to adapt or alter a
constitution. This power resides in the “people” understood as those who
have a direct hand in the formulation, adoption, and amendment or
alteration of the Constitution.

Political writers distinguish between legal sovereignty and political

sovereignty. The former is described as the supreme power to make laws
and the latter as the sum total of all the influences in a state, legal and non-
legal, which determine the course of law.

Sovereign authority, moreover, is not always directly exercised by the

people. It is normally delegated by the people to the government and to the
concrete persons in whose hands the powers of government temporarily
reside. The temptation to which government personnel are prone is to forget
that public office is a public trust, and an essentially temporary trust at that,
and to equate every attempt to wrest that trust from them, no matter by what
means, to criminal acts of subversion. It is a temptation not easily resisted
under any form of authoritarian rule.

Sovereignty of the people also includes the concept that government

officials have only the authority given them by law and defined by law, and
such authority continues only with the consent of the people. This is the
meaning of the rule of law: a government of laws and not of men. The
Constitutional Commission, however, did not consider it necessary to make
explicit the right of the people to oust an abusive and authoritarian
government through non-violent means.
 Finally, is recognition by other states a constitutive element of a state
such that even if it has all four elements of the Montevideo Convention it is
not a state if it has not been recognized? In international law, there are two
views on this. One view, the constitutive theory, is that recognition
“constitutes” a state, that is, it is what makes a state a state and confers
legal personality on the entity. The other view, the declaratory theory, is that
recognition is merely “declaratory” of the existence of the state and that its
being a state depends upon its possession of the required elements and not
upon recognition. A recognizing state merely accepts an already existing
situation. The weight of authority favors the “declaratory view.” In practice,
however, whether to recognize or not is largely a political decision.

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 PRIMER
ON
MAGALLONA V. ERMITA

Backgrounder

The United Nations Convention of the Law of the Sea (UNCLOS) III is a
multilateral treaty that delimits and regulates, among others, the right to use
and exploit maritime zones, i.e., the territorial waters [12 nautical miles from
the baselines], contiguous zone [24 nautical miles from the baselines],
exclusive economic zone [200 nautical miles from the baselines], and
continental shelves and codifies norms regulating the conduct of States in
the world's oceans and submarine areas, recognizing coastal and
archipelagic States' graduated authority over a limited span of waters and
submarine lands along their coasts. R.A. 9522 is the latest version our
“baselines law” that marks out the specific basepoints along the Philippine
coast from which baselines are drawn. From such baselines, the maritime
zones are measured.

1. Does RA 9522 reduce Philippine maritime territory, and logically, the

reach of the Philippine state’s sovereign power, in violation of Article 1
of the 1987 Constitution, which embodies the terms of the Treaty of
Paris and ancillary treaties?

No. Acquisition or loss of territory is a matter of international law, not

municipal (national) legislation. Under international law, the traditional
modes of acquiring territory are: occupation, accretion, cession and
prescription,  not by executing multilateral treaties on the regulations of sea-
use rights or by enacting statutes to comply with the treaty's terms to delimit
maritime zones and continental shelves. Territorial claims to land features
are outside UNCLOS III, and are instead governed by the rules on general
international law.

Petitioners' assertion of loss of "about 15,000 square nautical miles of

territorial waters" under RA 9522 is similarly unfounded both in fact and law.
On the contrary, RA 9522, by optimizing the location of basepoints,
 increased the Philippines' total maritime space (covering its internal waters,
territorial sea and exclusive economic zone) by 145,216 square nautical
miles. The reach of the exclusive economic zone drawn under RA 9522 even
extends way beyond the waters covered by the rectangular demarcation
under the Treaty of Paris. Of course, where there are overlapping exclusive
economic zones of opposite or adjacent States, there will have to be a
delineation of maritime boundaries in accordance with UNCLOS III.
2. Does RA 9952’s use of UNCLOS III's regime of islands framework to
draw the baselines, and to measure the breadth of the applicable
maritime zones of the Kalayaan Islands Group (KIG) "weaken our
territorial claim over that area, (considering that the KIG's and
Scarborough Shoal's exclusion from the Philippine archipelagic
baselines results in the loss of "about 15,000 square nautical miles of
territorial waters," prejudicing the livelihood of subsistence fishermen)?
 Section 2 of RA 9522 explicitly acknowledges the Philippines' claim of
sovereignty and jurisdiction over the KIG and the Scarborough Shoal. The
“Regime of Islands” framework merely establishes the KIG and Scarborough
Shoal as separate from the Philippine Archipelago since these outlying
areas are located at an appreciable distance from the nearest shoreline of
the Philippine archipelago. Had Congress in RA 9522 enclosed the KIG and
the Scarborough Shoal as part of the Philippine archipelago, adverse legal
effects would have ensued.

3. Does RA 9522 “fail to textualize” the Philippines' claim over Sabah in

North Borneo?

Section 2 of RA 5446, which RA 9522 did not repeal, keeps open the
door for drawing the baselines of Sabah:

  “Section 2. The definition of the baselines of the territorial sea of the Philippine
Archipelago as provided in this Act is without prejudice to the delineation of the
baselines of the territorial sea around the territory of Sabah, situated in North Borneo,
over which the Republic of the Philippines has acquired dominion and sovereignty. ”
(Emphasis supplied)

4. Does RA 9952 unconstitutionally "convert" internal waters into

archipelagic waters, hence subjecting these waters to the right of
innocent and sea lanes passage under UNCLOS III, including overflight,
exposing Philippine internal waters to nuclear and maritime pollution
hazards, in violation of the Constitution?
 Whether referred to as Philippine "internal waters" under Article I of
the Constitution  or as "archipelagic waters" under UNCLOS III (Article 49
[1]), the Philippines exercises sovereignty over the body of water lying
landward of the baselines, including the air space over it and the submarine
areas underneath. UNCLOS III affirms this. The fact of sovereignty, however,
does not preclude the operation of municipal and international law norms
subjecting the territorial sea or archipelagic waters to necessary, if not
marginal, burdens in the interest of maintaining unimpeded, expeditious
international navigation, consistent with the international law principle of
freedom of navigation.

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 PRIMER
ON
PHILIPPINES V. CHINA

 
1. China claims historic rights to navigation, fishing and exploitation of
resources in the maritime areas of the South China Sea delineated by its
so-called “nine-dash line”. Is there legal basis for the claim?

Under UNCLOS, China has no historic rights in the South China Sea
beyond the limits of the maritime zones. UNCLOS was intended to be a
detailed and comprehensive allocation of the rights of states to maritime
areas. China’s claim to historic rights to resources was incompatible with
the detailed allocation of rights and maritime zones in the Convention.
China’s historic rights to resources in South China Sea waters, were
extinguished when the Convention entered into force to the extent that they
were incompatible with the Convention’s system of maritime zones. The
question of pre-existing rights to resources was considered during the
negotiations for creation of exclusive economic zones (EEZ) but the
preservation of historic fishing rights was rejected. The final text of UNCLOS
gives other states only limited right of access to fisheries in the EEZ and no
rights to petroleum or mineral resources.

2. What is the status of “features” in the South China Sea?

Rule: Features that are above water at high tide generate an entitlement
to at least a 12-nautical mile territorial sea; features that are submerged at
high tide generate no entitlement to maritime zones.

Fact: Many of the reefs in the South China Sea have been heavily
modified by recent land reclamation and construction; the Convention
classifies features on the basis of their natural condition

Scarborough Shoal, Johnson Reef, Cuarteron Reef, and Fiery Cross Reef
are high-tide features.

Subi Reef, Hughes Reef, Mischief Reef, and Second Thomas Shoal were
submerged at high tide in their natural condition.

But Gaven Reef (North) and McKennan Reef are high-tide features

3. Do any of the features claimed by China generate an entitlement to

maritime zones beyond the 12-mile territorial sea?

Under UNCLOS, islands generate an entitlement to an exclusive

economic zone of 200 nautical miles and to a continental shelf, but rocks
which cannot sustain human habitation or economic life of their own shall
have no exclusive economic zone or continental shelf.

Entitlements of a feature depend on the

a) objective capacity of a feature,

b) its natural conditions to sustain either

c) a stable community of people or

 d) economic activity that is neither dependent on outside resources
nor purely extractive in nature.

Even if many of the features are currently controlled by one or other of the
littoral States, which have constructed installations and maintained
personnel there and have been modified to improve their habitability (by
land reclamation and construction of infrastructure), the current presence of
official personnel on many of the features does not establish their capacity,
in their natural condition, to sustain a stable community of people and
considered that historical evidence of habitation or economic life was more
relevant to the objective capacity of the features.

Temporary use of features (as in by small groups of Chinese fishermen

and from other states in the Spratly Islands and Japanese fishing and guano
mining enterprises) did not amount to inhabitation by a stable community
and that all historical economic activity had been extractive in nature.

All high-tide features in the Spratly Islands are legally “rocks” that do not
generate an exclusive economic zone or continental shelf.

The Convention does not provide for a group of islands (such as the
Spratly Islands) to generate maritime zones collectively as a unit.

4. Under UNCLOS, are the actions of the Chinese in the South China Sea
lawful?

1. Because Mischief Reef, Second Thomas Shoal and Reed Bank are
submerged at high tide and are not overlapped by any possible entitlement
of China, they form part of the exclusive economic zone and continental
shelf of the Philippines; the Convention is clear in allocating sovereign rights
to the Philippines with respect to sea areas in its exclusive economic zone.

2. China had violated the Philippines’ sovereign rights with respect to

its exclusive economic zone and continental shelf: China had

a) interfered with Philippine petroleum exploration at Reed Bank,

b) purported to prohibit fishing by Philippine vessels within the

Philippines’ exclusive economic zone,

c) protected and failed to prevent Chinese fishermen from fishing

within the Philippines’ exclusive economic zone at Mischief Reef
and Second Thomas Shoal, and

d) constructed installations and artificial islands as Mischief Reef

without the authorization of the Philippines

5. What about traditional fishing at Scarborough Shoal?

Fishermen from both China and the Philippines and from other
countries had long fished at the Scarborough Shoal and had traditional
fishing rights in the area. Scarborough Shoal is above water at high tide so it
generates an entitlement to a territorial sea, its surrounding waters do not
form part of the exclusive economic zone, and traditional fishing rights were
not extinguished by the Convention. China had violated its duty to respect
the traditional fishing rights of Philippine fishermen by halting access to the
Shoal after May 2012.

6. What is the effect of China’s actions on the marine environment? 

China’s large scale land reclamation and construction of artificial islands

at seven features in the Spratly Islands has caused severe harm to the coral
reef environment.

China violated its obligations under Articles 192 and 194 of the
Convention to preserve and protect the marine environment with respect to
fragile ecosystems and the habitat of depleted, threatened, or endangered
species.

Chinese fishermen were engaged in the harvesting of endangered sea

turtles, corals and giant clams on a substantial scale in the South China Sea
using methods that inflicted severe damage on the coral reef environment;
Chinese authorities were aware of these and failed to fulfill their due
diligence obligation under the Convention to stop them.

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