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The South China Sea Arbitration

Republic of the Philippines vs.


People’s Republic of China
The Tribunal Decision
• The decisions of the Permanent Court of Arbitration
(PCA) Tribunal can be divided into 5 parts:

1. The Historic Rights and “Nine-Dash Line”


2. The Status of the Features
3. The Lawfulness of Chinese Actions
4. The Harm Dealt to the Marine Environment
5. The Aggravation Dealt by the Dispute
China’s “Historic Rights”
China asserts maritime rights beyond its UNCLOS
entitlements based on several domestic legislations:

 1992 Chinese Law on the Territorial Sea and the


Contiguous Zone;
 1996 Chinese Law on Exclusive Economic Zones; and
 1998 Chinese Law on the Exclusive Economic Zone and the
Continental Shelf.

These are the primary sources of its claim of “historic rights”


and justification for its “nine-dash line” in South China Sea.
Nine-Dash Line
• The Nine-Dash Line—at various times also
referred to as the "10-dash line" and the "11-
dash line"—refers to the demarcation line used
initially by the government of the Republic of
China (ROC / Taiwan) and subsequently also by
the government of the People's Republic of China
(PRC), for their claims of the major part of the
South China Sea
• (It covers 90% of the contested waters)
Nine-Dash Line
• The Nine-Dash Line cut through, and of, areas where
SEA States have entitlements under UNCLOS (EEZ,
Contiguous Zones). [China not having a land mass in the
specified area]

• It would give China rights to within 39 miles of Luzon, 34


miles of Palawan, 24 miles of Malaysia, among others
• These “historic rights” would entitle China to exclusive
sovereign rights and jurisdiction far beyond limits of
maritime zones established by UNCLOS –superseding
and nullifying rights of other States.
Basis of Arbitration
• Article 287 (5) UNCLOS provides that “if the Parties
to a dispute have not accepted the same procedure
for the settlement of the dispute, it may submitted
only to arbitration in accordance with Annex VII”

• Since both Parties have ratified UNCLOS, both are


bound by its Convention including its provisions
under Part XV (settlement of disputes). It satisfies
requirement of “consent” of the Parties.
China’s Non-Acceptance
• On 25 August 2006 (10 years after its
ratification), China makes declaration that it
does not accept the procedures in Part XV,
particularly Article 298.

• Article 298 (a) – “xxx…disputes concerning


interpretation or application of EEZ, Territorial
Sea, Continental Shelf, disputes concerning
military activities and law enforcement”
China’s Non-Acceptance
• Article 9, Annex VII of the UNLOS: “Absence of a
party or failure of a party to defend its case
shall not constitute a bar to the proceedings”

• China’s Foreign Ministry has also highlighted in


its statements, press briefings, and interviews
that it considers non-participation in the
arbitration to be its lawful right under the
Convention.
Limitation on Settlement
The Convention, however, does not address the sovereignty of
States over land territory.

The Tribunal has not been asked to, and does not purport to,
make any ruling as to which State enjoys sovereignty over any
land territory in the South China Sea, in particular with respect to
the disputes concerning sovereignty over the Spratly Islands or
Scarborough Shoal.

None of the Tribunal’s decisions in this Award are dependent on


a finding of sovereignty, nor should anything in this Award be
understood to imply a view with respect to questions of land
sovereignty. (Paragraph 5, PCA Ruling)
China’s Question of Jurisdiction

1. China states that the subject matter raised by the


Philippines’ claims deals with “territorial
sovereignty” over several maritime features in the
South China Sea, thus, it is beyond the scope of
UNCLOS.

It invokes Article 298 (1)(a) on the ground that


Philippines’ submissions concerns sea boundary
delimitations.
China’s Question of Jurisdiction

2. Assuming some of the claims were concerned


with the interpretation and application of
UNCLOS based on maritime delimitation, it
would still be excluded by China, through its
2006 Declaration and consequently not subject
to compulsory arbitration.
China’s Question of Jurisdiction

3. Given that China and the Philippines have


agreed to settle their disputes in the South
China Sea through negotiations, the Philippines
is precluded from initiating arbitration
unilaterally.
China’s Question of Jurisdiction

4. The Philippines failed to fulfil the obligation of


exchanging views with China on the means of
dispute settlement.

5. The Philippines’ initiation of the arbitration is a


typical abuse of compulsory arbitral procedures
stipulated in the UNCLOS.
Philippines’ Clarification
Determination of entitlement to maritime zones and
delimitation of areas where these zones overlap are totally
different.

Tribunal settles only maritime entitlements and not


determination of sovereignty or delimitation of maritime
boundaries.

Claims not grounded on UNCLOS such as “historic rights”,


precluded by UNCLOS, and, were extinguished by China’s
accession to the Convention
Delimitation vs. Entitlement
Entitlement is short of delimitation; referred to as
part of a relevant coast.

Delimitation- drawing of boundaries.


Areas of Clarifications
1. The Philippines seek declarations that Parties’
respective rights and obligations in regard to waters,
seabed, and maritime features of South China Sea
are governed by UNCLOS and that China’s claims
based on “historic rights” encompassed within its
“nine-dash line” inconsistent with the Convention
and invalid.
Areas of Clarifications
2. The Philippines seeks a declaration that all of
the features claimed by China in the Spratly
Islands, as well as Scarborough Shoal, fall within
one or the other of these categories and that none
of these features generates an entitlement to an
exclusive economic zone or to a continental shelf.

Philippines state that no amount of artificial


reclamation work can change status of features.
Areas of Clarifications
 Why? -The Convention provides that submerged
banks and low-tide elevations are incapable on
their own of generating any entitlements to
maritime areas and:
 that “rocks which cannot sustain human
habitation or economic life of their own” do not
generate an entitlement to an exclusive
economic zone of 200 nautical miles or to a
continental shelf.
Questions Raised
If island, then it can be entitled to territorial sea,
excusive economic zones and continental shelf.

 Under UNCLOS, a coastal state needs to have


land before they can claim rights to the sea.

“You need to have land before you can have rights


to sea. It’s as simple as that” – Former SG Jardeleza,
U.P. Law Center, 2014
Areas of Clarifications
3. The Philippines seeks declarations that China has
violated UNCLOS by interfering with exercise of
Philippines sovereign rights and freedoms under
Convention through construction and fishing
activities that have harmed maritime environment.
The ‘Nine-dash Line’ and China’s Claim to
Historic Rights
Main Point: China’s marine entitlements cannot
extend beyond those permitted by UNCLOS

 “historic rights” and “nine-dash line” are contrary


to the Convention and without legal effect
On the “Waters Adjacent” to the
Islands and other Geological
Features
 The Philippines, under the Roman notion of
dominium maris and the international law
principle of “la terre domine la mer” which states
that the land dominates the sea, necessarily
exercises sovereignty and jurisdiction over the
waters around or adjacent to each relevant
geological feature in the KIG as provided for
under the United Nations Convention on the Law
of the Sea (UNCLOS).
“Relevant Waters, Seabed and
Subsoil” in the SCS”
- Philippines
 With respect to these areas, sovereignty and
jurisdiction or sovereign rights, as the case may be,
necessarily appertain or belong to the appropriate
coastal or archipelagic state – the Philippines – to
which these bodies of waters as well as seabed and
subsoil are appurtenant, either in the nature of
Territorial Sea, or 200 M Exclusive Economic Zone
(EEZ), or Continental Shelf (CS) in accordance with
Articles 3, 4, 55, 57, and 76 of UNCLOS
“Relevant Waters, Seabed and
Subsoil” in the SCS” -China
 China has indisputable sovereignty over the Nansha
Islands and their adjacent waters.
 As early as 1948, the Chinese government published
an official map which displayed “the dotted line” in
the South China Sea. China’s sovereignty over the
South China Sea and its claims to the relevant rights
have been formed over a long course of history.
They are solidly grounded in international law and
have been consistently upheld by successive Chinese
government
Map showing the “Location of the Various
Islands in the South Sea,” 1948 Boundary
Department of the Ministry of Interior,
Republic of China
Sovereignty vs. Sovereign Rights

 SOVEREIGNTY bestows full rights, or supreme


authority on a country within its territorial waters,
which stretch to 12 nm.

 SOVEREIGN RIGHTS (short of sovereignty) are not


rights deriving from sovereignty but rights of a
specific functional purpose –Article 56 UNCLOS.
-exclusive rights to explore and exploit of its EEZ
Sovereignty vs. Sovereign Rights

 Philippines: China is asserting sovereign rights


and jurisdiction by (a) seeking to ban fishing by
other States within the ‘nine-dash line’; (b)
interfering with the Philippines’ petroleum
exploration activities; and (c) offering concessions
to oil blocks in areas within the ‘nine-dash line’
but beyond the possible limits of China’s
entitlements under the Convention
Sovereignty vs. Sovereign Rights

 The Philippines considers that China’s conduct


makes clear that its claim is not to sovereignty
over the entire area within the ‘nine-dash line’,
insofar as China has repeatedly asserted that it
respects freedom of navigation and overflight in
the South China Sea.
The ‘Nine-dash Line’ and China’s Claim to
Historic Rights

 Historic Title cannot be conflated with “historic rights”.


 Historic Title is a narrow concept applicable only near-
shore waters. (internal waters, territorial sea). UNCLOS
refers to “historic titles” in Article 15 and 298(1)(a) that
are susceptible to a claim of sovereignty as such.
 Even if China’s claim were to a historic title, however,
the Philippines submits that Article 298 would
nevertheless be inapplicable because the article applies
only to disputes over the delimitation of historic bays
and titles.
The ‘Nine-dash Line’ and China’s Claim to
Historic Rights

 The Philippines’ argument is two-fold.


 1)the Philippines submits that international law
did not historically permit the type of expansive
claim and any such rights were extinguished by the
adoption of the Convention.
 2) the Philippines argues that, on the basis of the
historical record of China’s activities in the South
China Sea, China cannot meet the criteria for having
established historic rights within the ‘nine-dash line’
The ‘Nine-dash Line’ and China’s Claim to
Historic Rights

 According to the Philippines, where the


Convention makes no express exception for prior
uses or rights “those historic rights would not
have survived as derogations from the
sovereignty, sovereign rights and high seas
freedoms of other states.
The Main Issues on Historic Rights and Nine-
Dash Line

1. Does the does the Convention, and in particular


its rules for the exclusive economic zone and
continental shelf, allow for the preservation of rights
to living and non-living resources that are at
variance with the provisions of the Convention and
which may have been established prior to the
Convention’s entry into force by agreement or
unilateral act?
The Main Issues on Historic Rights and Nine-
Dash Line

2. Prior to the entry into force of the Convention,


did China have historic rights and jurisdiction over
living and non-living resources in the waters of the
South China Sea beyond the limits of the territorial
sea?
The Main Issues on Historic Rights and Nine-
Dash Line

3. If China, in the years since the conclusion of the


Convention established rights and jurisdiction over
living and non-living resources in the waters of the
South China Sea that are at variance with the
provisions of the Convention? If so, would such
establishment of rights and jurisdiction be
compatible with the Convention?
Ruling

Article 30 of the Vienna Convention on the Law of


Treaties states that between a Convention and other
source of rights (historic rights)

=the later treaty will prevail to the extent of any


incompatibility, unless either treaty specifies that it
is subject to the other, in which case the intent of
the parties will prevail
Ruling

The historic rights, although not strictly take the form of an


agreement = China’s Main Contention

Where the Convention does not expressly permit or preserve


a prior agreement, rule of customary international law, or
historic right, such prior norms will not be incompatible with
the Convention where their operation does not conflict with
any provision of the Convention or to the extent that
interpretation indicates that the Convention intended the
prior agreements, rules, or rights to continue in operation
Ruling

MAIN POINT:

No article of the Convention expressly provides for


or permits the continued existence of historic rights
to the living or non-living resources of the exclusive
economic zone.
Ruling

MAIN POINT:

The Tribunal considers that the Convention is clear


in according sovereign rights to the living and non-
living resources of the exclusive economic zone to
the coastal State alone.
Ruling

MAIN POINT:

The notion of sovereign rights over living and non-


living resources is generally incompatible with
another State having historic rights to the same
resources, in particular if such historic rights are
considered exclusive, as China’s claim to historic
rights appears to be.
Tribunal Ruling on Nine-Dash Line

“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.”
Tribunal Ruling on Nine-Dash Line

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
Thank you!
Mabuhay ang
Pilipinas!