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The South China Sea Arbitration (The Republic of Philippines v. The People's Republic of China)

On 22 January 2013, the Republic of the Philippines instituted arbitral proceedings against the People’s Republic of China under
Annex VII to the United Nations Convention on the Law of the Sea (the “Convention”). The arbitration concerned the role of historic
rights and the source of maritime entitlements in the South China Sea, the status of certain maritime features in the South China Sea,
and the lawfulness of certain actions by China in the South China Sea that the Philippines alleged to be in violation of the Convention.
China adopted a position of non-acceptance and non-participation in the proceedings. The Permanent Court of Arbitration served as
Registry in this arbitration.

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 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.

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
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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
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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.

International Court Issues Unanimous Award in Philippines v. China Case on South China Sea

On Tuesday morning, a tribunal of five judges at Hague-based Permanent Court of Arbitration issued a highly anticipated
and unanimous award in Republic of Philippines v. People’s Republic of China, a case filed in 2013 by Manila concerning
maritime entitlements and the status of features in the South China Sea, among other issues.

The Tribunal’s award is highly favorable to the Philippines, ruling that China’s nine-dash line claim and accompanying
claims to historic rights have no validity under international law; that no feature in the Spratly Islands, including Taiwan-
occupied Itu Aba (or Taiping Island), is an island under the United Nations Convention on the Law of the Sea (UNCLOS);
and that the behavior of Chinese ships physically obstructing Philippine vessels is unlawful.

Perhaps the most significant finding–and the one most likely to disturb China–is the Tribunal’s award that China’s nine-
dash line and claim to historic rights in the South China Sea are both invalid under international law. Notably:

the Tribunal concluded that, to the extent China had historic rights to resources in the waters of the South China Sea,
such rights were extinguished to the extent they were incompatible with the exclusive economic zones provided for in
the Convention.

Part of the Tribunal’s reasoning on historic rights considered historical evidence, concluding that while China may have
made use of the islands in the South China Sea, there was no strong evidence that China “had historically exercised
exclusive control over the waters or their resources.” This latter point is a particularly strong rebuttal to China’s position
and its rhetoric on the South China Sea.

The Tribunal’s decision also rules that Chinese reclamation activities in the Spratly Islands, where the country has built
seven artificial islands, are illegal under UNCLOS. Clarifying its reasoning for ruling Itu Aba–the largest South China Sea
feature and one with a substantial Taiwanese presence–an island, the Tribunal said that under Article 121.3 of UNCLOS,
the clause defining what constitutes an island, a “stable community of people” is a necessary requirement. Taiwan had
submitted its case to the Tribunal for why Itu Aba should have been considered an island, claiming that the feature had
the self-sufficient means necessary to sustain human life, including fresh water.
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Regarding the status of features in the Spratly Islands–a key feature of the Philippines’ case against China–the Tribunal
ruled that “Scarborough Shoal, Johnson Reef, Cuarteron Reef, and Fiery Cross Reef are high-tide features and that Subi
Reef, Hughes Reef, Mischief Reef, and Second Thomas Shoal were submerged at high tide in their natural condition.”
These designations comport with the Philippines’ original positions in its filing to the Tribunal, demonstrating that the
country’s legal reasoning for why these features should be considered either high-tide features or low-tide elevations
was accurate.

The Tribunal disagreed with the Philippines on the status of just two features: Gaven Reef (North) and McKennan Reef,
concluding that both are high tide features. Under UNCLOS, high tide features or “rocks” are entitled to a 12 nautical
mile territorial sea. Nevertheless, the Tribunal ruled certain Chinese activities in the Spratlys illegal, based on its finding
that Mischief Reef, Second Thomas Shoal, and Reed Bank “form part of the exclusive economic zone and continental
shelf of the Philippines.” While the Tribunal stated its opinion that these features comprised the Philippines’ lawful
continental shelf under UNCLOS, it did not consider the sovereignty of individual features in the South China Sea.
Questions of territorial sovereignty are outside of the scope of the UNCLOS, the international treaty forming the basis
for adjudication in this case.

The Tribunal’s award also found that through its “large-scale land reclamation activities in the Spratly Islands,” China had
“caused severe harm to the coral reef environment and violated its obligation to preserve and protect fragile
ecosystems and the habitat of depleted, threatened, or endangered species.” The Tribunal also found that the Chinese
government is aware that Chinese fishermen in the South China Sea were purposefully exploiting endangered species
“on a substantial scale.”

In one area, the Tribunal found that it lacked jurisdiction. Specifically, it ruled that because a stand-off between China
and the Philippines involved “military activities” it was excluded from compulsory settlement under UNCLOS.

China’s Foreign Ministry, keeping to its position announced before the award, said that the Tribunal’s award “is null and
void and has no binding force.” “China neither accepts nor recognizes it,” it added, in a statement posted to Xinhua’s
website.

The Philippines, despite the favorable nature of the award, has reacted carefully. According to the Philippine Star,
Philippines Foreign Secretary Perfecto Yasay, Jr., said that the country’s experts are studying the award. He also noted
that the country “maintains respect for the milestone decision” and “upholds international law.”

Read any way, the Tribunal’s finding on the merits here is hugely favorable to the Philippines, with the decision and
reasoning mostly comporting with what Manila had argued (with a few exceptions). In China, the award will make for
difficult reading. It marks the first significant international legal decision on the maritime disputes in the South China
Sea. The Tribunal’s findings on the nine-dash line and historic rights in particular will render Chinese language on
activities in other parts of the South China Sea–including the exclusive economic zones of Vietnam and Indonesia–
awkward. Though this case was borne of tensions between China and the Philippines after the Scarborough Shoal stand-
off in 2012, it will come to bear on all claimants in the area.

China’s behavior in the aftermath of this decision remains uncertain. As the foreign ministry statement demonstrates,
Beijing is eager to clarify that it does not accept the result of legitimacy of the Tribunal’s award and will continue its
activities in the South China Sea unhindered. Additionally, there are signs that the new government in the Philippines,
under the leadership of President Rodrigo Duterte, will look to forge a path to compromise, attempting to provide China
with a face-saving “off ramp” after the highly embarrassing result of the award. Given the Tribunal’s award on Itu Aba
notably, it’s unclear how Duterte would reasonably offer China some sort of joint development arrangement that would
not then also concede waters legally deemed to be the Philippines’ per this award.

The award’s affirmation of Scarborough Shoal as a rock and Second Thomas Shoal as a low-tide elevation suggests a
retrenchment of the status quo, where China can continue to occupy Scarborough and the Philippines can continue to
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treat BRP Sierra Madre, the grounded ship at Second Thomas Shoal, as an outpost. If China and the Philippines do
pursue bilateral talks, these two features could be an area with some bargaining potential.

Another area to watch will be the upcoming meeting of the foreign ministers of the ten members of the Association of
Southeast Asian Nations (ASEAN) in Vientiane, Laos. The ministers will meet starting July 21. As the recent imbroglio at
the Kunming meeting between ASEAN ministers and the Chinese foreign minister revealed, fissures exist within the
grouping. Given the particularly strong nature of this award, it is unlikely that ASEAN ministers will be able to offer a
strong statement in support of the Tribunal. Indeed, given signs that the Philippines itself may be looking to ease on the
pressure against China, there may be less interest within the regional grouping to push for a strong statement.

Whatever happens next, the nature of maritime and even territorial disputes in the South China Sea will have changed
considerably. A feature on most every map of the disputes in the region–China’s ambiguous and capacious nine-dash
line–has been declared illegal under international law by a Tribunal convened under the United Nations Convention on
the Law of Sea. While features won’t change hands anytime soon and while artificial islands won’t turn back into their
natural, pre-reclamation state as submerged reefs or partially exposed rocks, the legal understanding of these disputes
will stand on momentous precedent.

Statement of the Ministry of Foreign Affairs of the People's Republic of China on the Award of 12 July 2016 of the
Arbitral Tribunal in the South China Sea Arbitration Established at the Request of the Republic of the Philippines

With regard to the award rendered on 12 July 2016 by the Arbitral Tribunal in the South China Sea
arbitration established at the unilateral request of the Republic of the Philippines (hereinafter
referred to as the "Arbitral Tribunal"), the Ministry of Foreign Affairs of the People's Republic of
China solemnly declares that the award is null and void and has no binding force. China neither
accepts nor recognizes it.
1. On 22 January 2013, the then government of the Republic of the Philippines unilaterally initiated
arbitration on the relevant disputes in the South China Sea between China and the Philippines. On
19 February 2013, the Chinese government solemnly declared that it neither accepts nor
participates in that arbitration and has since repeatedly reiterated that position. On 7 December
2014, the Chinese government released the Position Paper of the Government of the People's
Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the
Republic of the Philippines, pointing out that the Philippines' initiation of arbitration breaches the
agreement between the two states, violates the United Nations Convention on the Law of the Sea
(UNCLOS), and goes against the general practice of international arbitration, and that the Arbitral
Tribunal has no jurisdiction. On 29 October 2015, the Arbitral Tribunal rendered an award on
jurisdiction and admissibility. The Chinese government immediately stated that the award is null
and void and has no binding force. China's positions are clear and consistent.

2. The unilateral initiation of arbitration by the Philippines is out of bad faith. It aims not to resolve
the relevant disputes between China and the Philippines, or to maintain peace and stability in the
South China Sea, but to deny China's territorial sovereignty and maritime rights and interests in
the South China Sea. The initiation of this arbitration violates international law. First, the subject-
matter of the arbitration initiated by the Philippines is in essence an issue of territorial sovereignty
over some islands and reefs of Nansha Qundao (the Nansha Islands), and inevitably concerns and
cannot be separated from maritime delimitation between China and the Philippines. Fully aware
that territorial issues are not subject to UNCLOS, and that maritime delimitation disputes have
been excluded from the UNCLOS compulsory dispute settlement procedures by China's 2006
declaration, the Philippines deliberately packaged the relevant disputes as mere issues concerning
the interpretation or application of UNCLOS. Second, the Philippines' unilateral initiation of
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arbitration infringes upon China's right as a state party to UNCLOS to choose on its own will the
procedures and means for dispute settlement. As early as in 2006, pursuant to Article 298 of
UNCLOS, China excluded from the compulsory dispute settlement procedures of UNCLOS disputes
concerning, among others, maritime delimitation, historic bays or titles, military and law
enforcement activities. Third, the Philippines' unilateral initiation of arbitration violates the bilateral
agreement reached between China and the Philippines, and repeatedly reaffirmed over the years, to
resolve relevant disputes in the South China Sea through negotiations. Fourth, the Philippines'
unilateral initiation of arbitration violates the commitment made by China and ASEAN Member
States, including the Philippines, in the 2002 Declaration on the Conduct of Parties in the South
China Sea (DOC) to resolve the relevant disputes through negotiations by states directly concerned.
By unilaterally initiating the arbitration, the Philippines violates UNCLOS and its provisions on the
application of dispute settlement procedures, the principle of "pacta sunt servanda" and other rules
and principles of international law.
3. The Arbitral Tribunal disregards the fact that the essence of the subject-matter of the arbitration
initiated by the Philippines is issues of territorial sovereignty and maritime delimitation, erroneously
interprets the common choice of means of dispute settlement already made jointly by China and the
Philippines, erroneously construes the legal effect of the relevant commitment in the DOC,
deliberately circumvents the optional exceptions declaration made by China under Article 298 of
UNCLOS, selectively takes relevant islands and reefs out of the macro-geographical framework of
Nanhai Zhudao (the South China Sea Islands), subjectively and speculatively interprets and applies
UNCLOS, and obviously errs in ascertaining facts and applying the law. The conduct of the Arbitral
Tribunal and its awards seriously contravene the general practice of international arbitration,
completely deviate from the object and purpose of UNCLOS to promote peaceful settlement of
disputes, substantially impair the integrity and authority of UNCLOS, gravely infringe upon China's
legitimate rights as a sovereign state and state party to UNCLOS, and are unjust and unlawful.
4. China's territorial sovereignty and maritime rights and interests in the South China Sea shall
under no circumstances be affected by those awards. China opposes and will never accept any
claim or action based on those awards.
5. The Chinese government reiterates that, regarding territorial issues and maritime delimitation
disputes, China does not accept any means of third party dispute settlement or any solution
imposed on China. The Chinese government will continue to abide by international law and basic
norms governing international relations as enshrined in the Charter of the United Nations,
including the principles of respecting state sovereignty and territorial integrity and peaceful
settlement of disputes, and continue to work with states directly concerned to resolve the relevant
disputes in the South China Sea through negotiations and consultations on the basis of respecting
historical facts and in accordance with international law, so as to maintain peace and stability in
the South China Sea.

SOUTH CHINA SEA ARBITRATION

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(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
Registry: Permanent Court of Arbitration Date of Award: 12 July 2016

Preface
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:
To resolve a dispute between the parties regarding the source of maritime rights and
entitlements in the South China Sea;
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;
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
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marine environment, and inflicting harm on the marine environment (through land
reclamation and construction of artificial islands);
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:
The essence of the subject-matter of the arbitration is the territorial sovereignty over the relevant
maritime features in the South China Sea;
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;
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
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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)
 P a g e | 10

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].
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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.