Differences China Filipinas 2019 Bueno

The South China Sea Disputes: Territorial and Maritime Differences Between the
Philippines and China

Author(s): Liam Reeves
Source: Journal of Global Faultlines , Vol. 6, No. 1 (August-October 2019), pp. 39-61
Published by: Pluto Journals
Stable URL: https://www.jstor.org/stable/10.13169/jglobfaul.6.1.0039
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Journal of Global Faultlines, 2019
Vol. 6, No. 1, 39–61.
The South China Sea Disputes: Territorial and Maritime

Differences Between the Philippines and China
Liam Reeves1
Introduction: Timeline and Strategic aims of the Parties
This article will discuss the ongoing dispute in the South China Sea, specifically the legal
issues over territorial and maritime disputes between the Philippines and China. The intro-
duction will lay out the timeline of events and geopolitics in the South China Sea specifically
related to the Spratly archipelago.
In the second section, I will start by discussing the maritime disputes that the 2016
arbitral award tried to address; these will specifically pertain to historic rights and the status
of maritime features in the Spratly Island Archipelago. In the third section, I will discuss the
hypothetical sovereignty over the Spratly islands. As section 3 finishes, I will conclude with
who has the stronger position to claim sovereignty over the Spratlays.
A Brief Timeline
The South China Sea is a body of water located south of China, east of Vietnam and west of
the Philippines. It spans a geographical area of more than 3,500km and is a key trade route
with an estimated three trillion dollars’ worth of trade per year transiting through making it
a key strategic area to control.2 The Spratly islands have become the focal point for the dispute
between China and the Philippines in the South China Sea, as controlling them offers many
strategic advantages. This has led some scholars to speculate that ‘whoever dominates the
Spratlys will have regional hegemony in the new millennium.’3
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The South China Sea Disputes
Liam Reeves
If one could trace back to the moment the disputes first started to arise between
China and the Philippines, it could be approximately dated to the second half of the twenti-
eth century.4 Before World War 2, the Spratly islands were relatively ignored and were con-
sidered somewhat irrelevant in the grand scale of global politics. This changed in 1973 when
a discovery of vast oil reserves off the east coast of Vietnam by Russian seismologists, which
made these insignificant islands ground zero for a dispute for resources. In the following
year, Thomas Cloma, a wealthy entrepreneur from the Philippines, claimed to discover the
Spratlys5 renounced his claim to his home state. This led the way for the Philippines to for-
mally incorporate the islands into Palawan province in the Philippines.6 In 1978, the presi-
dent of the Philippines then went on to extend its EEZ leading to the escalation of already
rampant tensions.7 This led the Philippines and China to perform rival acts of sovereignty,
such as the stationing of troops, the placing of sovereignty markers, and the building of
lighthouses and weather station.8 In 1982, the UN convention of the Law of the Sea was
signed by both the Philippines and China, which created a new line of disputes between the
two nations over maritime entitlements and access to maritime resources. In 1995, the dis-
pute took an aggressive turn when there was a brief naval clash between the Philippines and
China in which China seized the Mischief Reef.9 This aggression continued between the two
nations when in 2002 when the ASEAN countries labelled China’s moves as ‘provocative’
due to a series of incidents which saw China use its military force to drive Filipino ships away
from the Spratlys.10 This aggressive behaviour has continued, up to and after the 2016 Arbitral
award, as China continued to build military bases within Filipino territory in defiance of the
ruling.11 These events lead us to the current day geopolitical standoff.
Overview: Importance to China?
Chinese claims to the Spratlays can be best summed up in the 1947 publishing of the so-called
‘nine dash line’ of which approximately 80% of the South China Sea, including the Spratlys,
are enclosed in.12 It is not clear from this ‘nine dash line’ if China seeks to claim just both land
and maritime territory or whether its position is that it is just land or maritime territory.13
However, what is known is, as of 2018, that China controls seven objects in the Spratly
island chain and the waters surrounding these objects14. China has engaged in forceful
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tactics such large scale land reclamation projects and uses regular exercises of military power
in order to strengthen its position on these features15. The reasons for this behaviour cannot
be divorced from China’s geopolitical interests in the region, which are a significant and
persuasive factor. As China is aiming to be a global power, controlling the South China Sea
is deemed critical in securing regional dominance for the next millennium.16 This, as previ-
ously stated, is due to the mass trade of 3 trillion dollars a year passing through the South
China Sea therefore it is vital for china as an export oriented nation to control making it
therefore in China’s interest to secure the South China Sea.
The foreign policy of China in this region is catered to this aim, China requires access
to the sea meaning that China has a secure and stable means for exporting Chinese products
to the wider world. Though the aim of securing the South China Sea is primarily a matter of
economic strategy, this does not downplay the military importance of this region. This is a
fact the US government has understood since 1945, as the US is currently the controlling
naval power in the Asia-Pacific region, and has been since 1945. Controlling the Spratlys
would secure China’s position in the region, and indeed the globe, as a rapidly growing
superpower.17 The naval bases China is building in the region provide a level of protection to
Chinese supply lines which is also key to future success in exercising economic hegemony as
a future superpower.18
Furthermore, the expansion of Chinese natural boundaries carries strategic impor-
tance as a buffer zone, which could thwart enemy advances into Chinese territory should
conflict arise.19 This position puts China directly in contrast with the United States, who
drew similar conclusions in 1948. Famed US diplomat, George Kennan, noted that island
bases in Japan and the Philippines (areas surrounding the South China Sea) were crucial to
US power, and granted the USA ‘an irreducible minimum of national security.’20 China, on
the other hand, sees this current position of US power as a strategy of military containment,
to which control over the Spratlys is an excellent counter strategy. This has led to, as McCoy
states it, a ‘clash of rival geopolitical strategies . . . Washington’s continuing bid to control
Eurasia from is axial position on the Pacific littoral [and] Beijing forging a future capacity to
surgically and strategically impair U.S. military containment.’21 This is context that cannot
be excused from the current legal proceedings and is key to understanding how the dispute
came to fruition, particularly on China’s behalf.
When considering China’s aims domestically, the claims over the South China Sea
have been met with widespread interest on the Chinese social media network, Weibo, with
a People’s Daily article on the South China Sea getting over 1 million retweets and having 3.7
billion tweets using the hashtag.22 Some people within China go as far as to see it as China
trying to reclaim a Chinese national identity and place in the world by reasserting its ‘Asian
values’ after the century of humiliation by western powers, and Japan especially, in the South
China Sea region.23 Others see it as part of Chinese natural legacy as traditionally the region
fell within China’s ancient sphere of influence known as the tributary system.
An issue that has not been discussed in detail so far is the valuable nature of resources
that are present in the South China Sea. One of the most important issues, especially to the
Chinese and mentioned by a lot of parties, is fishing. With over 12% of the world’s catch of
fish found in the South China Sea, estimated to be worth $21.8 billion, it is thus clear why
China takes an interest in this abundant region.24 Commercially, it is also understandable
that China has taken an interest in this area, considering its economic significance in the
world and within China itself, as China has the largest population in the world, which cre-
ates a significant demand for fish.
The demand is also a cultural one; these fishing waters possess significance in Chinese
traditional culture. The Spratly islands have been fished on by Chinese fisherman since the
discovery of the islands (estimated to have started in the Jin Dynasty from 265-420BC), and
this has continued ever since.25 What also is reflected in Chinese culture about the Spratly
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Liam Reeves
islands is that they appear in Chinese historical texts in which these islands are drawn under
China’s sovereign territory. Furthermore, some of these texts discuss ‘tributes from the
South Sea by barbarians’ in the Qin Dynasty (221-206BC) suggesting that these islands were
once considered culturally Chinese, even if the people of these regions were not considered
ethnically Chinese.26 This cultural significance is demonstrated in the shi jing (The Classics
of Poems) which were are a series of different poems from ancient China that make specific
references to the beauty of Spratly islands throughout the compilation of texts.27
Continuing with the theme of resources, what has been hinted at earlier is the sig-
nificance that the oil in the region plays in China’s interests. According the American
Security Project, there are 7.7 billion barrels of oil proven to exist in the South China Sea but
it is predicted that this could be as high as 213 billion barrels.28 This would prove crucial to
China’s aims as a future world economic hegemon because it gives China a way to become a
more energy independent nation which is beneficial to a country’s power projection.
Currently, China depends significantly on other countries for access to oil, meaning there is
less security to this supply of imports. This concept of security is key to China as a rapidly
developing industrial economy.29 This demand has been further increased since 1994 in
which there has been an acceleration of importation of foreign oil products to 8 billion bar-
rels a day in 2017, as seen below in the graph.
Another two oft-missed resources that lie in the South China Sea are natural gas and
rare Earth minerals. The most prevalent of these is natural gas which is supposed to be
60–70% of hydrocarbon materials in the South China Sea and is in total estimated to be 266
trillion cubic feet worth of reserves. This is the approximate equivalent to the natural gas
reserves of Qatar, one of the richest nations in the world for natural gas.30 This, therefore,
provides a persuasive and indicative factor as to why a nation such as China may want to
utilize these resources for its own benefit. China has almost an absolute monopoly on the 17
rarest Earth minerals, meaning it has control on supply of these resources, which has been
key to China’s rise.31
Significance to the Philippines
In comparison, the Philippines only wishes to claim a partial area of the South China Sea
which is limited to the Spratly Islands. In regards to maritime entitlements claims, this is a
200nm exclusive economic zone and a continental shelf (it does not claim the Paracel islands)
which encompasses the Spratlys.32
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The main contentions for the Philippines and grounds for its occupation are based
upon two operative factors. Firstly, the Philippines claims upon the grounds of discovery of
the eight islands it currently occupies.33 This claim the Philippines puts forward is based
around the 1947 discovery of the islands in the South China Sea by a Filipino explorer by the
name of Tomas Cloma. In 1956 Cloma launched his formal expedition to the islands he
called the ‘Kaylaan group’ and tried to establish a nation state on the grounds of the
Montevideo Convention with the informal assistance of the Philippines.34 This nation build-
ing project predictably failed, so in 1978 the Filipino president Ferdinand Marcos declared
the islands would be incorporated into Filipino territory under the jurisdiction of Palawan
Province.35 In addition to this, the Philippines placed forward 57 claims over islands as part
of the Philippines.36 Secondly, the Philippines claims that the seizure of Mischief reef in 1995
by China is unlawful and expansionist. This second limb of the Filipino claim is based around
the fact that the Philippines is entitled to 200 miles EEZ.37,38
Skipping forward to the 2016 election in the Philippines, the South China Sea
remained a controversial and pressing issue, especially for candidate Rodrigo Duterte.
Duterte was prepared to ramp up tensions with China over the Spratlys, with Duterte him-
self suggesting that that he was going to sail to the Spratly islands on a jet ski and plant the
flag of the Philippines on the disputed islands personally if multilateral talks failed.39 These
remarks were met with a significant amount of populist/nationalist fervour by the Filipino
populace with many praising Duterte for his stance. This nationalist policy has been increas-
ingly popular with Filipino fisherman who have been attacked with water cannons and have
had their ships damaged by the Chinese navy.40 As previously stated, fishing is a key issue in
the Spratlys due to the reserves of fish the Philippines will not readily break of its claims.41
In terms of foreign policy, President Duterte has somewhat de-escalated his rhetoric
since his inauguration, suggesting a more diplomatic approach towards China and in gen-
eral suggesting that there could be a sharing of resources between the Philippines and China
going forward. This led to him finally cancelling his symbolic jet ski ride to the Spratlys in
2018.42 Duterte also suggested that he would not be willing to go to war over the islands and
that he would follow the results of the Arbitral ruling but would be open to alternative sug-
gestions. This more open policy to China may perhaps be due to the more contentious rela-
tionship with the United States due to the US’ condemnation of human rights violations
during the Filipino drug war.
What is also of note is the Philippines is, like China, a developing state and access to
these resources existing in the South China Sea could do a lot to increase the Filipino econ-
omy in terms of growth and development by investment in infrastructure. The living
resources in terms of fisheries could go a long way to achieving the Philippines’ develop-
ment plan which specifically talks about expanding the economic opportunities in the area
of agriculture and fisheries.43 This in turn, with the extra money from these extra economic
opportunities, will facilitate infrastructural development which will, according to the devel-
opment plan of the Philippines, help the Philippines become a ‘prosperous, predominately
middle class society.’44
Prior to this, in 2013, the Philippines filed a suit with the permanent court of arbitra-
tion as a response to further Chinese development on the Spratly islands within the claimed
nine-dash line.45 By February 13th of 2013 it became very clear that China would refuse to
attend the arbitration proceedings against it. In a letter to the Filipino government from the
ambassador of China, China stated it would not attend proceedings for three main reasons.46
The first, that China believed the Philippines had illegally occupied sovereign Chinese terri-
tory. The second, that the Philippines had agreed to a declaration on the South China Sea to
resolve all territorial and maritime disputes by negotiations with ASEAN states. The third,
and final, that China had offered chances for a confidence-building mechanism which was
outright rejected by the Philippines. The other position China mentioned was that the
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subject matter heavily involved maritime delamination, something the Chinese had taken a
2006 declaration preventing UNCLOS tribunals from ruling on.47
The tribunal nevertheless persisted, and finally on October 29th of 2015 the tribunal
pronounced that it has jurisdictional remit to consider the case of the South China Sea mari-
time merits, albeit in a limited form. Originally the Philippines had submitted 15 claims of
which only 7 survived initial scrutiny by the tribunal due to Chinese reservation on exclusion
of jurisdiction for these matters.48 In July 2016, the tribunal ruled in favour of the Philippines.
Despite the ruling, China has pledged to ignore this ruling on the basis that they
contest the tribunal’s jurisdiction for the reasons stated above. Meanwhile, the Philippines
continue to press their claims, with President Duterte even going to the extreme of stating
a willingness to go to war.
Maritime Disputes and the Arbitral Tribunal
As stated above, the Philippines decided to file suit in 2013 in response to ongoing Chinese
militarisation in the South China Sea. Jurisdiction for this case was accepted finally in October
2015 after over 2 years of written submissions from the Philippines (China refused to entertain
the tribunal due to its principle objections which are mentioned above but will be explained
more below). The Tribunal did favour the Filipino position in the main regards, stating that
none of the features in the Spratly island chain constituted as islands regardless of the altera-
tion of the features by the government of China. The tribunal in agreement with the Philippines
position agreed that China possesses no historic rights in the archipelago of the Spratly
islands. This ruling made China believe that the tribunal acted ‘ultra vires’ because the tribu-
nal should not have had standing to entertain the case as the dispute pertains to the issue of
sovereignty over the Spratly island chain. The statement issued in response is as follows: ‘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 construes the legal effect of the relevant . . . deliberately circumvents the optional
exceptions declaration made by China under Article 298 of UNCLOS, selectively takes rele-
vant islands and reefs out of the macro-geographical framework of Nanhai Zhudao (the South
China Sea Islands).’49
Historic Waters
China’s position and the problem with Article 298 UNCLOS
Firstly, ‘historic rights’ must be distinguished from ‘historic title’ in order to decipher the
Chinese position on the Spratly islands. ‘Historic rights’ are rights exercised and formed over
a long period of time owing to historical practice of a said behaviour which falls short of sov-
ereignty.50 A classic example of this is the idea of traditional fishing rights in another state’s
EEZ’s, this is an example of a historic right to utilise the waters for a specific purpose in this
case fishing only, what makes this historic is the formation due to a long historical utilisation
of these rights.51 In summary: ‘historical rights’ refers to ‘usage’ of specific areas/resources
(separate from sovereignty), whereas ‘historic title’ refers to sovereign ‘ownership’ of land or
maritime areas.52
The difference between this and other forms of title is the fact that sovereignty is
formed during a period of time which can be regarded as being historic.53 The tribunal by its
nature is prevented from deciding on issues of sovereignty/historic waters under Article
298.54 This article does not prevent the tribunal from pronouncing on historic rights, how-
ever, which is what the tribunal decided to pronounce on due to the aforementioned Article
298 but also China’s 2006 opt-out on the issues of maritime delimitation.55
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Though this announcement runs contrary to the issue whether China has claimed
historic rights or historic title, the claims of the Chinese government have remained consist-
ently clear and have been made very public on multiple occasions. China has always claimed
’historic titles’ not ‘historic rights’ in the Spratly island archipelago something which as
mentioned previously excludes the tribunal’s jurisdiction. For example, the Chinese govern-
ment’s 1958 Declaration on China’s Territorial Sea which states that: ‘the Nansha Islands
[. . .] are separated from the mainland and its coastal islands by the high seas and all the
other islands belonging to China.’56 In terms of primary evidence on China’s position, no
Chinese official has ever made the claim of historic rights or in some way linked the nine-
dash line to the historic rights of China, on the other hand China has been explicit on the
issue of ‘historic titles.’57
Therefore, the tribunal’s argument on historic rights is an argument of misrepresen-
tation. Any claims of rights only relates to sovereignty rights not the more limited historic
58
rights; these are two distinct regimes of rights.59 Talmon alleges this misrepresentation is
either the result of a mistranslation or negligence on the tribunal’s part as what is being
claimed does not match up with what is claimed.60 This becomes more evident when squar-
ing this position with secondary literature, particularly that produced by Chinese scholars
where there is a tendency to refer to China’s claims of that of ‘historic title’ which in turn
confers upon it historic rights.61 This clearly specifies that any rights which may be claimed
do not operate independently from title but instead flow from it.
In fact, China’s claim of sovereignty according to Talmon is two-fold: firstly it is a
claim over the whole of the Nasha/Spratly Archipelago; andsecondly it is a claim to pertain-
ing waters around the Nasha/Spratly islands62. Both of these claims, however, constitute as
claims to historic title/waters. This is supported in the fact that in a note sent to the
Philippines protesting the grant of licences for oil and gas drilling by the Foreign Ministry of
the People’s Republic of China in 2012 it was stated that China was concerned about this
proposal of these activities in places where China held ‘historic titles.’63
To once again refer to the Chinese government at the 26th UNCLOS state report of
China after the 2016 ruling, Deputy Ambassador WU Haitao stated: ‘The essence of the South
China Sea arbitration is territorial sovereignty and maritime delimitation. Its real intention is
to deny China’s territorial sovereignty and maritime rights in the South China Sea.’64
Furthermore, some, like professor Kuen-chen Fu, have argued that it is impossible to
discuss any maritime entitlements including historical rights unless issues such as sover-
eignty disputes have been settled. The principle of customary international law that applies
here is ‘the land dominates the sea’ which means sovereignty over land incurs maritime ter-
ritory.65 In the Spratly islands dispute, this also seems to be the applicable case to deny this
is incompatible with international law or in the words professor Kuen-Chen: “We all know
that ‘Land dominates the sea’ is the basic principle in the Convention. As long as the sover-
eignty issue is not settled, how could you decide on issues such as claims of territorial sea,
the Exclusive Economic Zone (EEZ) and the continental shelf (CS)?’66
The Filipino Position on China’s Historic Rights
Establishing Historic Rights: In order for there to be historic waters there are three factors
which have to be considered: 1) There is authority over the piece of maritime territory claimed
as historic waters. 2) Continuity of historic rights over the waters. 3) Attitude of foreign states
towards the claimed historic waters.67 According to the tribunal ‘historical rights are excep-
tional rights’, these three conditions must be proven by China for there to be historic rights in
actuality.68
In analysis, China has never actually exercised these rights over waters continu-
ously, it may have pre-17th century but with the rise of colonial powers in the 17th-20th
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century, many nations infringed on these previous historic claims to rights. During the
decolonisation period (1945–1997) many nations such as the Philippines and Vietnam
became independent and have continuously exercised their own sovereign rights over
water. Previous to this many nations in South East Asia have practiced demonstrable rights
in the South China Sea such as fishing and navigation, which embolden their positions.
China’s claims that its operations in the Spratlys constitute as authority, however, this is
not the case as the tribunal is not addressing the case of sovereignty but is instead the idea
of historic exclusivity over resources.69
It is clear, at least to the tribunal, that China’s claim of exclusive authority over his-
toric maritime rights is insufficient. Mere navigation and historic fishing do not constitute
as authority. What China would have had to have done was prove its specific activities go
beyond the rights of those permitted by freedom of the seas.70 As for the second condition,
China has not exercised this continuously and has not carried on exercising the fishing
rights consistently, with many states disrupting this practice. It is also superfluous to say is
that China has exercised historical sovereignty over non-living maritime resources. As
undersea deepwater drilling had not been possible either technologically or economically
until recent times.71 This means there is no way China could have historically accessed the
various non-living natural resources in the South China Sea, as the Tribunal accurately
points out.72
Taking the final requirement of acquiescence, it is clear that the Philippines has not
acquiesced in China’s historic rights. Acquiescence is the principle of assumed consent,
where if a nation does not protest to these rights being exercised then the right is assumed
to exist.73 In this case it is clear that Philippines has not acquiesced to the historic rights of
China to fish. Even if there is a claim that other states had acquiesced to China’s rights to
natural resources, the exact information defining the historic rights was not given in China’s
Exclusive Economic zone and Continental shelf act meaning notice cannot be given.74
Therefore the tribunal held there could not be acquiesce as it was not clear what the rights
the Philippines had to acquiesce to.75
Although, as raised by the critical study on the South China Sea ruling it may be
reckless for the tribunal to have discounted China’s activities in the South China Sea in the
21st century due to the fact that China exercised said rights in the form of fishing and trade
since 2000 at the very least.76 The Philippines contradicts this by stating that in previous
drafting China favoured a 3nm territorial sea and did not until 2009 accurately delaminate
where historic rights were.77 This position still remains unclear, even to the tribunal. The
reason for this confusion is the tribunal confusing the Chinese claim from sovereignty to
just access rights, meaning the tribunal’s favouring of the approach that maritime historic
rights are unconnected to historic sovereignty over land which is demonstrably false.78,79
Although, this is quite an understandable approach from the tribunal to try and divorce
maritime rights from territorial sovereignty as the tribunal was only allowed to address
questions on the law of the sea. Independent from title, it would seem very unlikely that
China could prove historical rights in the Spratly islands especially knowing the fact that
‘historical rights are in the most exceptional rights.’80 Therefore, China cannot claim these
exceptional rights for the reasons stated above but could have a claim if the rights pertain to
sovereignty.
A Reflective on the Tribunal Findings
When the tribunal finally concluded upon the judgement, they decided to favour the inter-
pretation of historic rights claims by China instead of Chinese historical sovereignty.81 The
tribunal decided to accept that the Filipino claims that China has no historic rights was the
correct interpretation of the dispute.
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Many Chinese scholars take issue with the fact that they claim historic rights based
upon historic title to the Spratly islands which is indicative of territorial claims to land,
something that has been widely known to be excluded from the remit of the convention.82
Overall, I believe it was inappropriate for the tribunal to rule on this issue due to the inclu-
sion of Chinese sovereignty claims.
The Status of Islands and Island Building
The Philippines in its submissions to the arbitral tribunal of 2016 identifies many of the
islands in the Spratlys to be rocks, thus lacking the status of islands that are capable of gener-
ating a 200 mile exclusive economic zone and contiguous zone83 (rocks on the other hand
possess only a 12 mile territorial sea).84 China, on the other hand seems to claim that many of
the features are islands. Under Article 121 of UNCLOS, an island is defined as ‘a naturally
formed area of land, surrounded by water, which is above water at high tide.’85 In analysis of
the situation in the Spratlys in the tribunal award seem to be that of a mix of low and high tide
elevations as evidenced by a series of hydrographic maps produced by Japan, United Kingdom,
France and the United States of America.86
Low tide elevations are islets which remain above sea level only when the sea is at low
tide, an island by contrast is piece of land that remains above sea level at high tide. If a low tide
elevation remains beyond the territorial sea of the nation then it does not incur its own territo-
rial sea, contiguous zone or EEZ.87 An island, however, can do this and is capable of incurring
all the maritime rights of a continental state.88 Accordingly the tribunal gave merit to British
and Chinese evidence of historic measuring of the high tide and low tide marks which were
consistently between 0.85–1.2 in the Spratly islands throughout the seasons proving that the
vast majority were low tide elevations.89 The Philippines, however, has an absence of direct
observation of the islands meaning that it relies heavily on satellite imagery of the Spratlys to
ascertain what a low tide elevation is. The tribunal decided that satellite imagery did not do
enough to ascertain whether the Spratly islands area consisted mainly of low tide elevations.90
Instead, the Philippines contributed to this argument by putting forth historical evi-
dence in the form of surveys from the British (1860s) and Imperial Japanese (1930s) navies to
support its claims. Although in Territorial and Maritime Dispute, the ICJ stated that while
historical surveys can be probative they are not conclusive due to the context of surveys at
the time;91 in essence, the Philippines’ evidence can be considered but the evidence does not
provide conclusive proof of what features are low tide elevations. However, in consideration
with the nautical surveys on the features in the Spratly Archipelago, the tribunal reached a
conclusion. Therefore the islets that were considered to be high tide elevations at natural
levels, the high tide elevations consist of : (a) Scarborough Shoal, (b) Cuarteron Reef, (c)
Fiery Cross Reef, (d) Johnson Reef, (e) McKennan Reef, and (f) Gaven Reef (North).92
What is also to be considered in relation to low tide elevations is the fact that China
has tried to raise these low tide elevations above sea level, particularly on mischief reef, to
claim island status. This action will not classify the low tide elevations as ‘islands’ as they fall
out of the convention as artificial islands and thus can be logically declared as not ‘naturally
forming’; they are not naturally above the high tide watermark.93 It is clear that when the
tribunal was sitting, China sought to strengthen its claims to maritime entitlements in the
South China Sea by helping to raise low tide elevations. With the example of mischief reef,
up to 5.5 Million square meters of land was reclaimed by China from January 2015 onwards.94
These actions do not alter the low tide elevation status of the islands in the naturally occur-
ring state, thus cannot be high tide elevations. Furthermore, the tribunal stated these spe-
cific low tide elevations do not constitute as land territory and form part of the undersea bed
which fall under the regime of the law of the sea95. Thus no level of alteration will change the
status of these features.
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As for the high tide elevations, the Philippines declares the specific list of islands
above to be incapable of generating a maritime zone of 200 miles as they 1) are rocks 2)
would prejudice the rights of its coastal entitlements and would be inequitable to declare
these rocks as having the status of an island.96
In order to discern the difference between an island and a rock, the law of the sea
convention under Article 121(3) declares rocks to be ‘[incapable of sustaining] human habita-
tion or economic life of their own.’97 This broadly means that the definition of an island has
nothing to do with the size of the feature but rather takes a more human-centric focus.98 To
ascertain what maritime features were rocks in the South China Sea dispute, the tribunal
factored in the object, purpose and context99 of Article 121(3) as well as the ‘travaux prepara-
toires.’ Firstly, the tribunal discussed the term ‘rocks’ and its interpretation and found it
does not matter what the rocks’ physical makeup consists of, whether that be gravel, rock or
clay, merely that it remains above water level and is naturally forming.100
The Tribunal then moved on to discuss ‘cannot’ and ‘sustain’. Cannot, according to
Klein requires of an objective test in interpretation of Article 121(3) and evidence that a com-
munity could actually live on the islands.101 This often will require historical evidence as to
whether a community could live on the islands.102 ‘Sustain’, the tribunal concluded to mean
‘support or provide necessary food, drink and resources’ in line with the English dictionary
definition.103 The tribunal also claimed ‘sustain’ to have a criteria of three different things
which should be taken with the English dictionary definition: ‘The first is the concept of the
support and provision of essentials . . . The second is a temporal concept: the support and
provision must be over a period of time and not one-off or short-lived . . . the third: a quali-
tative concept, entailing at least a minimal “proper standard.’104 The tribunal put these two
textual readings together and claimed that none of the features in question currently met
the definition of islands. For the most part, the ruling has not be criticised for this, however
according to Klein the only exception to this was over the labelling of Itu Aba105 as a rock,
which in her opinion is a ludicrous observation.106 Itu Aba is a feature which has potable
water, can grow its own vegetation and has historically been stationed by both military
forces and fisherman for extended periods. The tribunal nevertheless decided against accept-
ing these points because of the fact that Itu Aba required regular imports of goods and food
to support long-term habitation of the feature.107 Economic life was also found not to exist
on the feature due to the fact that the islands provided only an extractive value to other
populations based off the islands rather than actually facilitating economic development on
the island itself.108 Thus, Itu Aba is a rock.
However, this is flawed rationale in line with customary international law as the
Filipino argument on the status of features only depends on three examples of state practice
where states accept that rocks cannot generate full economic zones.109 These three examples
are Columbia’s Quitasueño, Japan’s Oki-no-Tori-shima, and the United Kingdom’s Rockall.110
Though in terms of customary international law, it would seem that a third category has
emerged of that of an islet, this is due to the claims of many states that would seem other-
wise inconsistent with definition of a rock under Article 121(3).111 According to Talmon, there
is nuance between these ‘rocks’ (as defined by treaty law) and ‘islets’ (as defined by custom-
ary international law) in international law as the difference between the two categories is so
significant that Talmon refers to it as treating ‘apples as pears’.112 To discuss customary inter-
national law for a moment in order to be customary international law, a practice must be
accepted as a ‘consistent rule with absolute rigorous conformity to the rule.’113 There are
numerous examples of islets which are considered to have maritime entitlements such as
the UK’s Nelson islands which are smaller than some of the rocks in the Spratly islands
which are accepted as entitled to an EEZ.114 Indeed at least 22 of the rocks in the Spratlay
island chain could be considered to meet the expert’s definition of an islet.115 This, in prac-
tice, means that China’s behaviour is no different to that of western powers.
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Conclusion to this Section
I believe the position of the tribunal is partly in error this is because it ignores the fact that
China is claiming historic title over the Spratly Island Archipelago rather than historic rights.
The argument of the tribunal in this respect for the reasons stated above is a misrepresenta-
tion of China’s claims; while China does claim historic rights, the rights it claims pertain and
flow from China having sovereignty over the island chain. Chinese Sovereignty is the opera-
tive clause which the tribunal is precluded from discussion of. The tribunal, in order to have
standing, misrepresents this and makes Chinese claims into something they are not; they are
claims of sovereignty first. As these claims have been misrepresented, Chinese sovereignty
along with Filipino sovereignty proper will be discussed in more detail in the next section,
including a breakdown of both of their claims.
However, where I do agree with the tribunal is the fact that the observations of mari-
time features is broadly correct as most features in the Spratly island chain are low tide
elevations are part of the sea bed (this will be crucial in determining hypothetical sover-
eignty in my conclusion in the section below). As for the high tide elevations, I have more of
a point of contention, the idea that Itu Aba is a rock would seem more illogical as for the
reasons stated above as it has been host to a military presence and has had administrative
district since the 1950s.
Sovereignty over the Spratly Islands and the effects of the Tribunal
While the tribunal did not deal with the question of land territory, I believe it is operative in
understanding the incorrectness of the ruling in certain areas of its judgement when dealing
with the Chinese Claims. Therefore although this section remains rather speculative on the
question of sovereignty over the Spratly islands, this section will use the tribunal’s judgement
in these next paragraphs to support the arguments of Chinese sovereignty.
China
Validity of China’s Historical Claims
The customary international law principle that China applies to assert its historic title to ter-
ritory in the South China Sea is one of discovery of Terra Nullius. Terra Nullius is territory
which is claimed by no one and thus is able to be claimed by anyone.116 Discovery of Terra
Nullius whilst remaining an inchoate title is still accepted as valid if one can prove a degree of
control/exercise of sovereignty since discovery.117 There is also further supporting evidence in
customary international law for a historic title in the case of Eretria V Yemen that once estab-
lished historic title ‘does not depend upon use and possession but in itself is a right of posses-
sion, whether or not possession is enjoyed in fact.’118
As this is a claim of historic title, it must be established if China indeed had his-
toric title over the Spratly (in their Chinese name Nasha) islands and whether or not has
exercised some sovereignty since the discovery. Therefore in customary international
law, it must be established that if China has any legal rights to territory in the South
China Sea, therefore we must have evidential proof that China has incorporated these
islets into its territory over a historic period.119 There is evidence for this as China states
that its discovery of said islets runs back to the Han Dynasty in 111 BC where upon it
named the Spratly islands the Nasha Islands.120 This claim predates the discovery by
Thomas Cloma of the Spratly islands by over 2,000 years. China supports this primary
claim of historic discovery and occupation by putting forth other documents often in the
form of historic Chinese texts with a few historical books which can be of assistance in
illustrating ownership over a claim with other concrete evidence.121 This is very similar to
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maps which can be said to be an additional factor supporting Chinese claims rather than
a primary claim in itself. However, neither historic books nor poetry would be a claim of
historic title in territory in themselves.
However, this is not to dismiss the Chinese claims entirely as there is concrete evi-
dence of Chinese activity which is indicative of ownership. The most notable form was in
1405 when Cheng Zu of the Ming dynasty sent a special envoy to the Spratly islands to incor-
porate them into China’s historic borders.122 This is after China claims it had previously built
naval bases upon the islands in 900–1127 AD to enforce its trade routes against pirates raid-
ing China’s ships. The customary international rule of the case of the Islands of Palmas fur-
thers the legality of these claims by saying: ‘it is quite natural that the establishment of
sovereignty may be the outcome of a progressive intensification of state control.’123 China’s
actions under the Ming dynasty seem to support this approach as state control progressively
evolved from a naval outpost to a formal central title meaning this is a strong claim.
However, possibly the strongest historic territory claim to the Spratly islands comes
from the eighteenth and nineteenth centuries in China’s time immemorial position. As often
this continuity of title will depend heavily on the administration of islands over a sustained
period and is often a clear way to establish sovereignty in the form of an ‘intentional display
of power and authority over territory by the exercise of jurisdiction of state functions on a
continuous and peaceful basis.’124 China has done this in a variety of different ways including
the administration of the Island under Hainan island prefecture in 1911 which brought the
islands under Chinese control.
Most significantly to mention is the fact that in order for historic title to lapse, a state
must either abandon the territory or acquiesce to another party’s acquisition of sovereignty
over the territory.125 China has done neither of these; to address abandonment first, which is
the principle of a state rendering territory as terra nullius by a state renouncing sovereignty
over territory making it free to claim. For this to happen another state must prove this ‘ani-
mus of abandonment . . . [which implies] forfeiture.’126 This will be difficult to prove as China
has in fact not done this; in 1933 it was stated by the British consular general that indeed the
Chinese still delivered supplies monthly to Chinese fisherman living on the Spratly island
archipelago, these actions continued until occupation by Japan.127 To discuss the annexation
by Japan, according to Talmon, the later annexation by Japan where China finally lost con-
trol over the Archipelago does not count as being forfeiture of China over the islands for the
following two reasons: 1.) Japan’s Annexation of the Spratlys was not recognised by the inter-
national community and 2.) Under the 1951 San Francisco Peace Treaty the Japanese govern-
ment had to renounce all claims over the islands to China.128 Secondly on the issue of
prescription, a state must acquiesce to another states exercise of sovereignty over territory.129
China has objected multiple times to other states incorporating the Spratly islands into their
territory. Most notably for this territorial dispute, the objection to Tomas Cloma’s occupa-
tion of the Spratly islands in the 1950’s to which China offered a strong condemnation of this
and reiterated the position that the Nasha islands belong to China.130 Furthermore on the
super secession of Philippines to Cloma’s claims in 1976, the Chinese government issued
statements claiming that ‘China has sovereignty over the Nasha islands and that all other
claims are null and void.’131
Recognition of China’s claims by other Nations
China further supports its position by giving evidence using naval maps from France and the
United kingdom which delineates Chinese territory by defining Chinese controlled territory.
The rule in customary international law is that maps provide a secondary evidence of a claim
rather than a primary claim.132 Although these maps could be of assistance to deciphering the
Chinese claim.
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Recognition by other nations of China’s historically is another way China exerts its
claims. This is another recognised customary international law rule in which recognition by
third party states can provide evidence for a territorial claim.133 Evidence for China’s case in
the South China Sea is drawn from the treaty of 1887 between China and Tonkin on the
drawing of territorial boundaries in the South China Sea. Within this treaty it was said that
anything lying west of the Spratly islands belongs to the French and anything east of the
Spratlys including the Spratly islands belongs to China.134 China claims this treaty gives rec-
ognition to its claims over the Spratly islands formally in law.
However, China’s claims are ambiguous feudal titles at best which may provide some
level of weakness towards China’s claims. If the rule is observed from Miniquries and
Ecrehos; if feudal titles are ambiguous if it does not specify borders of territory.135 China’s
claims on the treaty and subsequently maps seems to delineate more of a sphere of influence
rather than a specific entitlement to the Spratly islands.
Furthermore, as stated previously, China has made it deliberately unclear to what it
claims in the South China Sea, whether that be maritime territory, land territory or both.
This degree of ambiguity does not give specific evidence of concrete claims to the Spratly
islands, it merely delegates the west being French and the east being Chinese. This ambigu-
ity is further exacerbated by the fact that during the tributary system; the Chinese never
drew territorial boundaries because in this era it was not needed to do so.136 In customary
international law, the requirement of ‘defined’ claims is important, in fact the definition of
‘defined’ is one of the composite requirements to statehood including sovereignty over ter-
ritory which requires ‘defined territory’ although this does not mean undisputed both coun-
tries can claim ownership so long as what they are claiming ownership over is defined.137
China further specifies that the UK acknowledges its claims over the Nasha islands
in its publishing in the people’s daily newspaper in 1957 from the British diplomat in Peking
to the UK foreign office which claims that ‘Both Formosa and Nasha Archipelago belong to
the Chinese people, they are both Chinese territory.’138 This may be counted as an accurate
reflection of the British position at least on Chinese territory.
Therefore, there could be merits to the Chinese claims at least in terms of recogni-
tion of the Chinese claims over the Spratly island chain.
China’s Claims through Occupation:
As legal title in this case is difficult to ascertain, effectivités must be considered which may
establish or reaffirm a legal title.139 According to the Chinese Ministry of Foreign Affairs,
China has exercised sovereignty and jurisdiction since the Yuan Dynasty (1271–1368). This
means that China claims the islands under the use of effectivités over territory being that by
occupation and administration of territory.140 China claims that it controls significant islands
within the Spratly island chain. This would generally support China’s claims of effectivités as
one must ‘preform acts of administrative character which reflect an intention to govern and
not merely to possess in nominal fashion which constitutes title.’141 There is further credence
for this view as China does this in part at the current time by exercising sovereignty over seven
of the islets. However, China does possess various different claims of effectives and it has
since the 1960s enforced its claims by in 1963 stationing troops on the Spratly islands but also
prior to the Second World War administering the islands under the Hainian island region.
China also claims that previously to the 20th century it had defended its territory by
protesting against many attempts to seize Chinese territory during the era of colonialism most
notably when Germany in 1883 tried to incorporate the islands of the South China Sea into its
colonial empire.142 This shows a will to act as sovereign over the islands if it is protesting to the
territorial acquisition of sovereignty.143 This is because China did not acquiesce meaning there
is a demonstrable evidential basis to China’s claim that it intended to act as sovereign.
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Earlier to this date, Chinese scholars have claimed that the Chinese were the first to
open and maintain navigational lanes in the South China Sea around the Spratly islands.
The rule in customary international law generally states that one must perform acts that
show an exercise of sovereignty in order to claim.144 However, managing these sea lanes
alone may not grant as sovereign state in the modern era title over an island and therefore
may not be indicative of administrative acts by the Chinese. However this does not discount
other proof of China’s claims of occupation are the other activities the Chinese have been
preforming in the Sprartlys. According to Shen, these are acts that ‘include the installation
of facilities for fishing forecasting and navigation, rescues of Chinese and foreign vessels at
sea’ but also according to Shen ‘granting licences for exploitation of natural resources . . .
and other production activities.’145 These sorts of activities have been accepted by the
International Court of Justice in the case of the Territorial and Maritime dispute between
Nicaragua and Colombia that because Colombia demonstrated ‘public administration and
legislation.. Regulation of economic activities . . . public works . . . law enforcement meas-
ures’ it had established a strong case for sovereignty.146 This means that many of the acts
China has performed fall into these broad categories and have continued until this day,
therefore there is a clear demonstration that China has practiced effectives at least over the
maritime features it controls.
It is also pertinent to mention that China has stationed naval bases upon the Spratly
islands since the at least the Han Dynasty with gaps in between when the Spratly islands
along with Formosa were ceded to Japan after the Sino-Japanese War. After World War II and
the Chinese Revolution of 1948–1949, the People’s Republic of China went on to re-station
troops and naval bases on the Spratly islands. This has continued until the present day.
Furthermore, the Chinese disagree that Filipino occupation is a ground for the acqui-
sition of territory due to the illicit nature of the Filipino occupation. As such, China has
argued vehemently in its notes verable in 2011 that ‘the Philippine Republic of Philippines
started to invade and occupy some islands and reefs of China’s Nansha Islands and made
relevant territorial claims, to which China objects strongly. The Republic of Philippines’
occupation of some islands and reefs of China’s Nansha Islands . . . under the legal doctrine
of ‘ex injuria jus non oritur,’ the Republic of Philippines can in no way invoke such illegal
occupation to support its territorial claims.’147 This is an accurate observation of interna-
tional law as it is contrary to the principle of ‘ex injuria jus non oritur’ (or in basic terms: law
does not arise out of injustice) this is a guiding principle of international law which must be
obeyed. Furthermore, if the occupation is to be considered legal then this would run con-
trary to a ‘Jus Cognes’ which are fundamental rules of customary international law to which
all states become bound.148 Under 1970 UNGA 2625: The territory of a State shall not be the
object of acquisition by another State resulting from the threat or use of force. No territorial
acquisition resulting from the threat or use of force shall be recognized as legal.149 Due to the
skirmishes between the Philippines and China in 1971, any territory seized during this period
of time will be considered to be as legally invalid.150 Thus, the Philippines cannot, at least in
the eyes of the Chinese, incorporate the Spratly/Nasha archipelago into their island chain.
For these historical and legal reasons I would accredit the Chinese claim as having merit in
these regards.
The Philippines
Fililpino Claims Res Nuilius
Generally the first claim advanced by the Philippines is that the islands is one of res nuilus,
which is territory that has been abandoned and thus can be claimed by anyone. The Philippines
generally advances the fact that islands were not occupied at the time by any forces and that
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China had only registered an interest in the islands from the 1970s onwards when oil and
natural gas reserves had been discovered in the South China Sea.151
The Filipino claim of territory stems from the succession of the Cloma’s claim to
‘Freedom Land’ which the Philippines calls the Kaylaan islands. To start with Cloma’s claim
first, Cloma claimed he discovered the Kaylaan island group in 1956 after an expedition in
the South China Sea.152 Cloma, a rather eccentric millionaire, decided to claim the group of
islands known as the Spratlys as his own and eventually tried to form a sovereign state in
line with the Montevideo Convention. Though Cloma’s claim alone does not constitute as a
claim in itself as the state may not practice occupation by the acts of private citizens acting
in a private capacity.153
However, when Cloma decided to renounce his claim to his home state, the
Philippines in 1978 there became a full claim as a sovereign state annexed the islands in
a public capacity. These islands were then incorporated into the Filipino province of
Palwan by the President, a clear declaration of Filipino Sovereignty under Presidential
decree no 1596.154
The Philippines has followed this up by further bolstering its claims to the islands
since this action by preforming acts of occupation which constitute occupation. For exam-
ple: the Philippines from the 1960s onwards has performed law enforcement actions such as
ejecting smugglers and monitoring movements of shipping throughout the Spratly archi-
pelago.155 This constitutes as will to act as sovereign as stated in Nicaragua V Colombia
where law enforcement activities by Colombia constituted as a will to act as sovereign156.
Though these acts do not constitute the only activities by the Philippines towards, however
as they keep a stationed force on the Sierra Madre ship which is shipwrecked on the Second
Thomas Shoal, which is consistently supplied by the Philippines.157 This may also demon-
strate a will to act as sovereign. This demonstrates a will to govern these territories along
with the building of the lighthouses may constitute a will to control the Spratly islands.
These administrative acts have also consisted of actions such as establishing a local mayoral
district on the feature of Pag-Asa.158 This is clearly an intention to govern by the Filipino
government as a level of control is being exercised by a local government which constitutes
as an organ of the sovereign.159
Also assisting Filipino claims is the fact that China has further undermined its posi-
tion by using the use or threat of use of force to enforce its territorial claims. At the ASEAN
conference in 2002, China undertook obligations so as not to ramp up tensions with the
other claimants when enforcing its claims and to resolve the disputes peacefully.160
Therefore, the Filipino claim does have its merits but lacks the long historical prac-
tice of the Chinese claims.
Conclusion
It is now time to briefly discuss the intersection of the tribunal judgement on future sover-
eignty claims and how they could possibly have an impact in any case which may go before
the international court of justice:
i) Low Tide Elevations
As many of the islands of the Spratly islands are ‘Low Tide Elevations’ it is worth
analysing the relation between law of the sea to the land territory and how that affects
coastal rights. Although on first glance this appropriation of LTEs into land territory for the
purpose of drawing baselines may seem unlawful there is a severe divergence in the cus-
tomary international law rules that have applied, with some courts declaring there is cur-
rently no positive law rule on the land reclamation process. Courts have discussed the
vacuum in the area of law in Qatar V Bahrain stating that: ‘[in limiting baselines it is] not
established that in the absence of other rules and legal principles, low-tide elevations can,
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from the viewpoint of the acquisition of sovereignty, be fully assimilated with islands or
other land territory.’161 In contrast to this the ICJ in the latter case of Colombia V Nicaragua
decided that there was a positive legal rule prohibiting the appropriation of LTEs.162 The
Tribunal went with the later rule stating that there can be no level of occupation or exercise
of sovereignty which gives rights to these low tide elevations.163 Though this seems to
infringe customary international law as there is no basis in a positive legal rule going against
the practice.164 In order to establish a rule of customary international rule there must be
‘evidence of a general practice as accepted by law.’165 In absence in this practice on the
appropriation of LTEs for the purpose of when drawing baselines, any possible action by
China to draw baselines from these LTEs may be indeed considered lawful due to interna-
tional law’s permissive system.166 China does seem to have rights to appropriate and build-
ing on LTEs for the purpose of drawing baselines. Furthermore, there is the argument that
UNCLOS doesn’t define exactly what an ‘artificial island’ is and if LTEs can even be turned
into artificial islands which can be incorporated into territory for the purpose of drawing
baselines, the tribunal’s approach is at best strict being the ‘natural state’ of the islands
rather than the altered state of the islands.167,168
Though this argument will appear weak when applying UNCLOS by implication of
Article 121(2) in that it envisions a situation such as that of China and the Philippines, where
a state may seize a faraway low tide elevation, transform it and then incorporate it into ter-
ritory for the purpose of drawing baselines, in fact prohibits it.169 When read with the object
and purpose of the convention,170 its interpretation seems very clear that it was to achieve
equitable sharing of bordering exclusive economic zones and to prevent countries using far
away rocks to entitle themselves to massive maritime territory, a position in the drafting of
the convention which was supported by the Chinese delegates. Therefore, these claims over
the low tide elevations are null and void at least for the Philippines as they are part of the sea
bed at least as part of the tribunal’s claims.171
ii) Rocks
Generally China’s claims over the Spratlys remain stronger than the Filipino claims
due to a long course of historical practice which the Philippines lacks to the same extent.
China’s claims are also more widely acknowledged in documents and the Chinese still show
a consistent will to act as sovereign as can be seen by the heavy development projects on the
islands since at the earliest the 1970s with the stationing of troops.
Furthermore, there is nothing in the Convention or customary international law on
territory that prohibits the acquisition of sovereignty of rocks in the ocean. In fact when
considering customary international law, many states already do this by claiming rocks, to
single out specific examples: the case of Pedra Branca. The case of Pedra Branca involved a
dispute between Singapore and Malaysia, this dispute was arbitrated on the assumption that
the rocks could be claimed by sovereign occupation of the islands.172 Furthermore, this is not
the only rock where sovereignty has been claimed, the United Kingdom has claimed a rock
called Rockall saying that: ‘the islet of Rockall is part of the UK: Specifically it forms part of
Scotland under the Island Of Rockall act of 2012. No other states has disputed our claim to
the islet.’173 Therefore, it is quite possible for China to have sovereignty over the high tide
elevations in the South China Sea, applying the normal grounds of occupation which I have
considered above then it is clear that China has a very strong claim to the high tide eleva-
tions in the Spratly Archipelago. Any low tide elevations within 12nm which lie in the terri-
torial sea of these rocks will also belong to China.
It is important to mention the points of contention as to whether the feature of Itu
Aba is an island or a rock, the classification of in most people’s minds would be that Itu Aba
is an island but in the eyes of the expert opinion it is a rock.174 This classification, as stated
earlier, is flawed; whilst being capable to support individuals, it cannot support economic
activity. There are many islands that depend on imports from the mainland nation who is
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sovereign over the island. Some nations have territories that regularly depend on imports,
for instance Saint Helena in the South Atlantic This is a territory of the United Kingdom
which requires regular imports to ‘sustain’ the population. When taking a strict application
like the tribunal did it is very clear that this island cannot sustain and will have trouble sus-
taining its population.175
Still no one disputes that Saint Helena is not an island whilst they do dispute Itu
Aba. It may be that there is a bias in making the decision based upon the size of both of the
islands in which the judgement was made. Although size is not a prerequisite condition
though the size of feature is not mentioned in the UN Convention of the law of the sea
Article 121176 as a condition to define what an island is, this is not considered as a factor in the
tribunals judgement.177 It would seem quite dishonest to leave out as an operating factor as
the size as well as other factors like population would most likely be this would be a factor
in the decision (Itu Aba is only 400 meters178 wide in comparison to Saint Helena which is 47
miles squared.179)
iii) Maritime Territory
Continental states like China, even if slightly Archipelagic, are not entitled to draw
straight baselines, only Holistically Archipelagic nations such as the Philippines are entitled
to do so.180 China’s drawing of baselines based around Archipelagic status is inconsistent
with UNCLOS even if discussing the Spratly islands alone as many of the islets as previously
mentioned do not constitute islands under Article 121181 therefore cannot have archipelagic
baselines drawn from them.182 The Philippines, on the other hand, could draw its baselines
in order to claim the territory as Archipelagic states are entitled to draw baselines up to
100nm and as most of the low tide elevations lie within 50km of Palawan island, as most of
the low tide elevations are on the sea bed, the Philippines would be well within its rights to
do so. As for the Chinese claims if they are to be taken on its high tide elevations they could
only incur a 12nm territorial sea.
Significantly to the previous paragraph the tribunal went on to dismiss the issue with
the nine dash line and the Chinese exercise of Sovereignty in adjacent EEZs. Under UNCLOS,
the EEZ extends to 200 miles anything beyond is an illegal maritime entitlement.183 As China’s
nine dash line denies (seabed is 900km from the nearest Chinese coast) the Philippines (lies
50km for the Philippines coast) specific access to their own Exclusive Economic Zone should
be upheld, something China must respect as China is not entitled to interfere with the
Philippines EEZ under UNCLOS.184 China cannot derogate from this as UNCLOS was negoti-
ated as a specific package deal so one cannot deny the right of other nations to an EEZ, hence
why there is no derogations from provisions of UNCLOS to prevent inconsistences in the law
of the sea.185 China possibly having historic rights as mentioned in the first subheading of this
section will be shown to have negative effects on the Filipino right to an EEZ as only a sover-
eign state can have exclusive rights to natural resources whether living or non-living resources,
therefore the tribunal has rightfully stated the opinion that China at no time possesses any
special rights in the Filipino EEZ as would prejudice the Filipino EEZ.186 Even if some of the
rocks could constitute island status then they would only be eligible for 12nm territorial sea,
something which most of the islands will fail to achieve. Thus, any expansive entitlement
beyond the 12nm territorial sea would be undoubtedly cause an inequitable use granting of
rights to the Chinese and would involve impeding Filipino sovereign rights.
iv) Who has the Stronger Claim to the Spratlys as a Whole
While the Philippines’ claim is politically admirable and should be respected, I
believe that China’s claims are correct historically even though there is a lack of clarity. The
Chinese have remained a firm and steady occupying force in the Spratlys for many centuries.
Therefore I believe at least some of the high tide elevations should belong to China even
though China claims them as an archipelago. This is, I believe, to be likely with ICJ jurispru-
dence as equity often is used as a core principle of international law and is used in reaching
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of a judgement.187 My rationalisation for this conclusion is the fact that it seems that custom
will run contrary to the law of the sea which is made as part of a package deal to create a
constitution for the law of the sea. So the classification of islets is not appropriate to be con-
sidered as a new classification within Article 121; as Article 121 contains the strict definition
of an islands and what entitlements they have. Meaning that China could claim the islands
but not an expansive EEZ.
As for the low tide elevations, there is no way China could possibly claim these as in
the tribunals opinion they are a part of the sea bed so must belong to the Philippines 200nm
exclusive economic zone. China finds itself in a weak position in these regards, as even if it
does try to raise the level of the low tide elevations, they are still considered as their natural
state which is below sea level. Thus, the building of artificial islands in the exclusive economic
zone of the Philippines is disallowed as it lies still within the 200nm exclusive economic zone
and is illegal.
As for maritime delimitation, it seems very clear that the Philippines has an EEZ
entitlement from its coast line and China must not hinder Filipino sovereignty over under-
sea resources which are in the Philippine sea. China, from the high tide features it claims, is
only entitled to a 12nm territorial sea around the Spratly islands for two reasons 1) it would
impede the Philippines EEZ, and 2) the high tide elevations are rocks.
Therefore, out of China and the Philippines, China has the strongest claims to the
land territory but the Philippines has the strongest to maritime territory. The high tide ele-
vations, I conclude on the basis of historic claims and effective occupation, are stronger for
the Chinese rather than the Philippines’ claims, which, whilst strong in occupation, are
comparatively and historically weaker than the Chinese claims.
Notes
1
Liam Reeves’ contact email: lir581@yahoo.com
2
China Power, ‘How much trade transits the South China Sea?’ [2017] China Power
3
O, Saleem. ‘The Spratlay Islands Dispute: China Defines the New Millennium’ [2000] 5 American University
International Law Review 3 at 532
4
Murphy, B. ‘Dangerous Ground: The Spratly Islands and International Law’ [1995] 1 Ocean and Coastal
Law Journal 187 at 188
5
Freedom land was established in 1954
6
Note 4
7
Note 4 at 194
8
At Note 4 at 190
9
N, Roca. ‘Whose Land is it anyway? : The Territorial and Maritime Dispute over the Spratlay Islands’ [2017]
12 FIUL. Rev 391 at 397
10
Note 9
11
At Note 9
12
C, Rossi. ‘Treaty of Tordesillas Syndrome: Sovereignty Ad Absurdum and The South China Sea Arbitration’
[2017] 50 Cornell Journal of International Law at 231
13
S, Cheney-Peters. ‘China’s Nine Dash Line Faces Renewed Assault’ [2014] Center for International Maritime
Security
14
According to www.globalsecurity.org/military/world/war/spratly-claims.htm China controls: Curateon
Reef, Fiery Cross Reef, Gaven Reef, Hughes Reef, Johnson Reef, Mischief Reef and Subi Reef
15
D, Andreff. ‘Legal Implications of China’s Land Reclamation Projects on the Spratly Islands’ [2015] 47 New
York University Journal of International Law & Policy 5 at 857
16
Note 3
17
China is the second largest economic power and managed growth of 6.8% in the fiscal year of 2016–2017
https://ieconomics.com/china-gdp-annual-growth-rate
18
A McCoy, ‘Circles of Steel, Castles of Vanity: The Geopolitics of Military Bases on the South China Sea’
[2016] 75 The Journal of Asian Studies 4 at 979
56

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Vol. 6, No. 1, 39–61.
19
B, Taylor-Stammer, ‘Territorial Disputes at the ICJ’ [2004] 53 Duke Law Journal at 1779
20
J, Gaddis. ‘Strategies of Containment: A Critical Appraisal of American National Security during the Cold
War’ (2015) (New York: Oxford University Press) at 29
21
Note 19 at 1006
22
J, Cheng. ‘Why China won’t back off the South China Sea – whatever the world might say’ [2016] The
Conversation. Found at http://theconversation.com/why-china-wont-back-off-the-south-china-sea-what-
ever-the-world-might-say-62248
23
Note 12 at 239
24
M, Cheung. R, Sumaila & C, Schofield. ‘Fishing, not oil, is at the heart of the South China Sea dis-
pute’ [2016] The Conversation (Published August 15th 2016) Found at https://theconversation.com/
fishing-not-oil-is-at-the-heart-of-the-south-china-sea-dispute-63580
25
Z, Gao & J, Bing Bing. ‘The Nine-Dash Line in the South China Sea: History, Status, and Implications’
[2013] 107 Am. J. Int’l L. at 100
26
R, Pedrozo. ‘China versus Vietnam: An Analysis of Competing Claims in the South China Sea, CNA
Occasional Paper’ [2014] Channel NewsAsia at Page 7
27
S, Jiaming, ‘China’s Sovereignty over the South China Sea: A Historical Perspective’ [2002] Chinese JIL
93–157 at 102–104
28
X, Vagg. ‘Resources in the South China Sea’ [2012] American Security Project (Published December 4th
2012). Available at https://www.americansecurityproject.org/resources-in-the-south-china-sea/
29
A, Stanley. A Simeniski & S, Ladislaw. ‘China’s Net Oil Import Problem’.[2017] Centre for Strategic
and International Studies (Published April 10, 2017) Available at https://www.csis.org/analysis/
energy-fact-opinion-chinas-net-oil-import-problem
30
Note 29
31
D, Ma. “China Digs It”. [2012] Foreign Affairs (Published 25th April 2012) .
32
M, Velasco. ‘Philippines – China Relations: The Case of the South China Sea (Spratly Islands) Claims’
[2014] 2 Asia Pacific Journal of Multidisciplinary Research 6 at 80
33
Note 14
34
Note 34 at 31
35
Note 34
36
Ibid
37
United Nations Convention on the Law of the Sea (1982) Article 55 (thereafter UNCLOS in notes)
38
Ibid at Article 76
39
A Calazona, & C, Bantino, . ‘Rodrigo Duterte pledges to jet ski to a disputed South China Sea island’.[2016]
Sydney Morning Herald (Published 3rd May 2016) Available at https://www.smh.com.au/world/rodrigo-
duterte-pledges-to-jet-ski-to-a-disputed-south-china-sea-island-20160503-goknao.html
40
Republic of the Philippines V The People’s Republic of China [2016] PCA Case No 2013–19
41
Note 25
42
ABS-CBN News. ‘Walang gasolinahan’: Why Duterte cancelled jet ski ride to PH Rise’. [2018] ABS-CBN
News (Published May 16th 2018)
43
Filipino National Economic and Development Authority, ‘Philippine Development Plan abridged version
2017–2022’ [2017] (National Economic and Development Authority: Pasig City) at Page 19–20
44
Ibid at Pages 2–5
45
AFP, ‘World Tribunal to Hear South China Sea Case’ [2015] Bangkok Post. Published 30th October 2015.
46
Embassy of the Peoples Republic of China in The Republic of the Philippines presents its compliments to
the Department of Foreign Affairs of the Republic of the Philippines and, with reference to the Latter’s Note
Verbale no 12-0211 dated 22nd January 2013 (2013) No.(13)PG-329
47
Ibid 49
48
Note 51 Ibid at 141–152
49
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 (12/7/2016) Available at: http://www.fmprc.gov.cn/nanhai/eng/snhwtlcwj_1/t1379492.htm
50
UN Judicial Regime of Historic Waters including Historic Bays. UN Doc A/CN.4/143 (9th March 1962)
51
Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, ICJ Reports 1982, p. 18 at pp. 73–74, para.
100.
52
Island and Maritime Frontier Dispute (El Salvador V Honduras) [1992]ICJ Reports at 732 at 756, para.44
(diss. op. Oda).
57

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Liam Reeves
53
Maritime Delimitation and Territorial Questions between Qatar and Bahrain, [2001] ICJ Reports, at. 173,
para. 90
54
UNCLOS[1982] Article 298
55
Note 42 at P67-68
56
Declaration of the Government of the People’s Republic of China on China’s Territorial Sea, 4
September 1958, section 1, reproduced in Department of Policy, Legislation and Planning, State Oceanic
Administration (ed), Collection of the Sea Laws and Regulations of the People’s Republic of China (4th
edn., 2012), 295.
57
Below note 88
58
Note 78
59
Ibid
60
Below Note 85
61
I, Jiming &L, Dexia, ‘The Dotted Line on the Chinese Map of the South China Sea’ [????] A Note, 34
OCEAN DEV. & INT’L L. 287 at 293
62
Note 155 at 11
63
Note 42 at 227
64
Statement by Ambassador WU Haitao, Head of the Chinese Delegation and Deputy Permanent
Representative of China to the United Nations, Under Agenda Item “Report of the Secretary General" at the
26th Meeting of States Parties to the UNCLOS (23rd of June 2016)
65
Id., North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of
Germany/Netherlands) [1969], ICJ Reports 3, para. 96
66
L, Gu. ‘SCS arbitration tribunal’s erroneous exercise of jurisdiction violates UNCLOS: law expert’ [2016]
Xinhua. Available at: http://www.ecns.cn/voices/2016/05-24/211722.shtml
67
UN Judicial Reigme of Historic Waters including Historic Bays. UN Doc A/CN.4/143 (9th March 1962)
Para 185
68
Note 42 at 268
69
Ibid 99 at 267
70
Note 42 at para 270 in ref to Gulf of Maine as below
71
Visiongain, ‘The Deepwater & Ultra Deepwater Exploration & Production Market 2013–2023’ (2013)
Visiongain
72
Note 42
73
Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States), Judgment,
ICJ Reports [1984] p. 246 at pp. 341–342, para. 235.
74
People’s Republic of China, Exclusive Economic Zone and Continental Shelf Act (26 June 1998), available
at <www.npc.gov.cn/englishnpc/Law/2007–12/11/content_1383573.htm> also available at <www.un.org/
depts/los/legislationandtreaties/pdffiles/chn_1998_eez_act.pdf>.
75
PCA at 275
76
Chinese society for International Law, The South China Sea Arbitration Awards: A Critical Study [2018] 17
Chinese Journal of International Law 2 at 530
77
42 at Merits Hearing Tr. (Day 2), pp. 8–9;
78
Note 93 at P118 at Para 272
79
I, Papanucolopulu. ‘The Land dominates the Sea (Dominates the Land Dominates the Sea’ [2018]
Questions of International Law. Available at: www.qil-qdi.org/land-dominates-sea-dominates-sea/
80
PCA at 286
81
Note 42
82
UNCLOS[1982] Article 298(1)
83
U IBID at Article 121(3)
84
42 in Reference to the Written Submissions of the Philippines to the arbitral Tribunal [2013] Numbers
03–06
85
Note 121 at Article 121(1)
86
Note 42 at 174
87
UNCLOS [1982] Article 13(2)
88
Ibid Article 13(1)
89
42 At Para 316
90
Ibid at para 326
91
Territorial and Maritime Dispute (Nicaragua v. Colombia) [2012] ICJ Reports, p. 624 at p. 644, para. 35.
58

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Vol. 6, No. 1, 39–61.
92
Y, Lyons.’ High Tide Features in the SCS Aribtration: Distinguishing Small and Insular Land Areas From
Seabed Formations, Session 4’ [2017] Presentation at Centre for International Law in Singapore, 5-6th January
93
I, Saunders. ‘The South China Sea Award, Artificial Islands and Territory’ [2018] 34 Australian Yearbook
of International Law at 32
94
122 at Para 1008
95
42 at 309
96
42 at Merits Hearing Tr (Day 4), p. 11.
97
Note 118
98
Note 42 at Para 37
99
Vienna Convention on the Law of Treaties [1969] Articles 31–32
100
Note 135
101
N, Klein. ‘Islands and Rocks after The South China Sea Arbitration’ [2016] 36 Australian Yearbook of
International Law 1 at 3
102
Note 42 at 484
103
42 at 487
104
42 at 488
105
Itu Aba is currently under the occupation of Taiwan but Taiwan is not recognised by the vast majority of
the world’s nations. Taiwan and its territories are instead considered as a part of China in rebellion under
the ‘One China policy’. Although some nations such as the USA and UK only acknowledge the position of
the PRC’s ‘One China Policy’.
106
Note 42 at Page 26
107
Note 42 at 616
108
Note 42 at 617
109
Note 42 at 411
110
SCS Arbitration, Memorial of the Philippines, 30 March 2014, vol. I, paras.5.28–5.33
111
UNCLOS [1982] Article 121
112
Note 165 at 83
113
Nicragua V United States of America [1986] ICJ Reports at 197
114
Note 85 at 84–84
115
Clive Schofield, John R.V. Prescott, and Robert van de Poll. ‘An Appraisal of the Geographical Characteristics
and Status of Certain Insular Features in the South China Sea, March 2015, 20, 27’ [2015]; reproduced in
SCS Arbitration, Supplemental Written Submissions of the Philippines, 16 March 2015, vol. IX: Annexes,
Annex 513.
116
J, Crawford. ‘Acquisition and Transfer of Sovereignty’ [2012] (in Brownlie’s Principles of Public International
Law, Oxford: OUP) at 220
117
Below Note 163
118
Below Note 164 at 106–107
119
Miniquires and Erchos [1951] ICJ Reports at p47, 53–7
120
C, The-Kuang. ‘China’s Claim of Sovereignty Over the Spratlay and Paracel Islands: A Historical and Legal
Perspective’ [1991] 23 Case W Reg. Journal of international law 399 at 400
121
Note 3 at 537
122
Note 160 at 403
123
Islands of Palmas [1928] 22 AM J. Intl L 867 at 908 (judge Huber)
124
Eritrea/Yemen [1998] 114 ILR at 169
125
Note 155 at 48
126
Arbitral Award on the Subject of the difference relative to sovereignty over Clipperton island [1932] 26
AJIL 390–394 at 394
127
British National Archives, Islands in the South China Sea, Telegram GPS 240 from Peking to Foreign
Office, 15th June 1933. British National Archives, FCP 21/1506. Territorial Disputes of China: Airspace and
Issues in South China Sea [1976]
128
Note 165 at 49
129
Case Concerning The Temple of Preah Vihear: (Cambodia V Thailand)[1962] ICJ Reports at 26
130
Below note
131
Ministry of Foreign Affairs of the People’s Republic of China, Statement of the Government of the People’s
Republic of China on China’s Territorial Sovereignty and Maritime Rights and Interests in the South China
Sea [2016]
59

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132
Territorial and Maritime Dispute (Nicaragua V Colombia) [2012] ICJ Reports at 80–81
133
Ibid note 172
134
B Murphy. ‘Dangerous Ground: The Spratly Islands and International Law’ [1995] 1 Ocean & Coastal LJ
135
Note 159 at 54
136
Note 12
137
Montevideo Convention [1933] Article 1
138
British National Archives, Islands in the South China Sea, Telegram No.304 from Peking to the Foreign
Office, [24th may 1957] , British National Archives for 371, 1273, Claims by China to Islands of the South
China Seas 1957.
139
Burkino Faso V Mali [1986] ICJ Reports p554-555 at Para 596–587
140
Ministry of Foreign Affairs of the People’s Republic of China, Issue of the South China Sea official state-
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141
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142
159 at 404–406
143
M Antunes & N Sergio. ‘Acquiescence’ (2006) Max Planck Encyclopaedia of Public International Law
(Oxford:OUP 2006)
144
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145
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146
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147
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2011, available at: http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/chn_2011_re_
phl_e.pdf
148
Vienna Convention of the Law of Treaties [1969] Article 53
149
Declaration on Principles of International Law concerning Friendly Relations and Co-operation among
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150
J Bing Bing. ‘The Principle of the Domination of the Land over the Sea: A Historical Perspective on the
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151
Note 4
152
Note 36
153
Sovereignty over Pulau Litigan and Pulau Sipadau (Indonesia/Malaysia) [2002] ICJ Reports at 68
154
Filipino Presidential Decree-Declaring Certain Area Part of The Philippine Territory and Providing For
Their Government and Administration. 11th June 1978
155
M Rosen. ‘Philippine Claims in The South China Sea: A Legal Analysis’ [2014] A CAN occasional paper,
Published 2014 CNA at page 17
156
Note 172
157
Note 196 at 27–28
158
Note 198
159
Note 197
160
Association of South East Asian States, Joint Statement on The Declaration on the Conduct of Parties in
the South China Sea at the ASEAN Conference [2002]
161
Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v Bahrain) (Merits)
[2001] ICJ Rep 40 at Para 206
162
Note 64 at Para 26
163
Note 122 at 309
164
Note 129 at 34
165
J, Kunz. ‘The Nature of Customary International Law’ (1953) The American Journal of International Law
at 662–669
166
SS Lotus (France V Turkey) [1927] PCIJ
167
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168
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169
Note 120 at Article 121(2)
170
Vienna Convention on the Law of Treaties [1969] Article 31
171
51 at 309
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Vol. 6, No. 1, 39–61.
172
Sovereignty over Pedra Branca/Pulau Batu Pute, Middle Rocks and South Ledge Case(Malaysia V
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173
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174
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175
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176
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177
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178
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179
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180
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181
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182
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183
UNCLOS [1986] Article 57
184
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185
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186
Note 97 at P255 at Para 631
187
Statute of the International Court of Justice [1945] Article 38
61

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