THE PHILIPPINES

v. CHINA ARBITRAL CASE

 LEGAL BASIS OF PHILIPPINES’
ACTION AGAINST CHINA
• Under international law, states have renounced the use of
force in their foreign relations Article 2 (4) of the UN Charter.
Under UNCLOS, the Philippines invokes -
• Article 279. Obligation to settle disputes by peaceful means
• Article 280. Settlement of disputes by any peaceful means
chosen by the parties
 LEGAL BASIS OF PHILIPPINES’
ACTION AGAINST CHINA
Article 286 of UNCLOS provides that subject to Section 3, any dispute concerning the
interpretation or application of this Convention shall, where no settlement has been
reached by recourse to Section1, be submitted at the request of any party to the dispute
to the court or tribunal having jurisdiction under this Section.
Since the Philippines and China have not chosen a specific procedure to resolve their
disputes, they fall under Annex VII of UNCLOS. Parties would now be covered by binding
arbitration.
Thus on 22 January 2013, the Philippines commenced arbitration proceedings against
China under the compulsory and mandatory dispute settlement procedure of UNCLOS
(ANNEX VII)
 THE PHILIPPINES ASKED THE ARBITRAL TRIBUNAL
TO RULE ON THREE BASIC ISSUES:

1. If China’s nine-dash lines claim should be sustained;

2. If the low tide elevations which China reclaimed and upon
which it has built permanent structures form part of the
Philippine continental shelf;
3. If the waters outside the 12 nautical miles surrounding the
Panatag Island (Scarborough Shoal) form part of the Philippine
Exclusive Economic Zone
 TWO CONTRASTING VIEWS
• Philippine view: “China as a party to the UNCLOS is subject to
Article 286. Countries that ratified UNCLOS are deemed to have
abandoned claims to maritime territory not provided by convention.”
Chinese view: China’s declaration is an opt out of the dispute
settlement procedure of UNCLOS. “The 40 countries that ratified
UNCLOS 1 but registered declarations are not deemed to have
waived all their historical claims to maritime territory.”
 ARGUMENTS OF THE PHILIPPINES ON
CHINA’S RESERVATIONS
• Issues do not involve delimitation.
• The case calls merely for interpretation whether China’s 9-dash lines comprise
China’s internal waters (34), territorial sea ( 8), or EEZ (55).
• Similarly, declarations that islets are low water marks (121 and 5), ( Malaysia v.
Singapore, ICJ) and declaration that waters around Panatag comprise Philippine
EEZ (57) do not involve delimitation .
• Philippines has attempted to reach agreement since 1987 to no avail. Hence, arbitral
claim is ripe for adjudication.
Moreover, UNCLOS requires Philippines and China to delimit bilaterally through
negotiations and agreement at the first instance.
Scarborough Shaol
Scarborough Shaol
 FACTS LEADING TO THE PHILIPPINE ARBITRAL CASE
On April, 2012, the BRP Gregorio del Pilar, reported that
Chinese fishermen were engaged in illegal fishing in the area.
Philippine authorities were prevented from arresting the
fishermen by Chinese surveillance boats.
After the incident, China warned its nationals against travel to
the Philippines and banned the entry of imported pineapples
and bananas originating from the Philippines.
BRP SIERRA MADRE
CHINESE VESSEL DRIVING AWAY FILIPINO FISHERMEN
FILIPINO FISHERMEN IN THE DISPUTED AREA
• On May 16, 2012, both China and the Philippines
imposed fishing ban in the Scarborough Shoal.
• By July 2012, China constructed a barrier to the
entrance of the shoal, and it deployed vessels
belonging to Beijing's Chinese Marine Surveillance Unit
and Fisheries Law Enforcement Command in the
disputed shoal;
• As of September 2012, Chinese government ships
remain around the shoal and have been turning away
Filipino fishermen.
CHINA’S VIGILANT PATROL BOATS
• The Philippines has since considered the presence of
Chinese vessels in the area as an intrusion in Philippine
territory.
• This precipitated the filing of the arbitral proceedings.
• China did not respond to the Philippine notification
and refused to appoint its arbitrator to the
proceedings.
• It declared that it will not participate in the
proceedings.
 CHINA’S HISTORICAL CLAIM ON SOUTH CHINA SEA
Foreign Ministry Spokesman in a press statement on
February 2012 said:
“Neither China nor any other country lays claim to the
entire South China Sea”
In a letter to the UN Secretary-General, China’s UN
Mission on May 2009 claimed:
“China has indisputable sovereignty over the islands in
the South China Sea and the adjacent waters, and
enjoys sovereign rights and jurisdiction over the relevant
waters as well as the seabed and subsoil thereof.
CHINA’S CRITICISM OF THE CLAIM OF THE PHILIPPINES
• “It is the basic principle of the international maritime law that
land dominates the sea. UNCLOS allows coastal states to
claim a 200-nautical-mile EEZ, but coastal states have no
right to harm the inherent territory and sovereignty of other
countries.”
• “Any attempt to use UNCLOS to change the territorial
sovereignty of a country is a violation of the principles of
international law, including UNCLOS.”
• “The maritime jurisdiction of the Philippines should not
infringe upon the territorial sovereignty of China over the
Huangyan Island.”
 NATIONAL TERRITORY OF THE PHILIPPINES
Article I, 1987 Constitution provides: “The national territory
comprises the Philippine archipelago, with all the islands and
waters embraced therein, and all other territories over which
the Philippines has sovereignty or jurisdiction, consisting of its
terrestrial, fluvial and aerial domains, including its territorial
sea, the seabed, the subsoil, the insular shelves, and other
submarine areas. The waters around, between, and connecting
the islands of the archipelago, regardless of their breadth and
dimensions, form part of the internal waters of the Philippines.”
 HISTORICAL BASIS
• South China Sea was part of the “Mar del Archipelago de las Islas
• Philipinas” in a 1727 Spanish Map.
• Spanish Map of the Philippines (1750) included Bajo de Masinglao as
part of the Philippine archipelago.
• A Spanish Chart of 1808 gave the name “Bajo de Masinglao” to what
is now popularly call the Scarborough Shoals - the name Scarborough
came from the vessel of the same designation which was wrecked in the
area on 12 September 1748 - apparently in reference to the town of
Masinloc, which in the mid-19th century was one of the biggest towns in
Zambales in terms of population size, next to Bolinao, Pangasinan.
• In the 18th and 19th centuries, Bajo de Masinglao had been regarded as
part of Philippine archipelago.
 GEOGRAPHICAL INFORMATION
• Isla Bajo de Masinloc is only 123 nautical miles(nm) from Zambales
but 446 nm from Mainland China and 454 nm from Hainan Dao,
China, 427.7 nm southern tip of Taiwan, 257.8 nm from Paracel
Islands, 202 nm from Macclessfield Bank, 476.5 nm from east coast of
Vietnam.
• It is an island that forms part of the submarine ridge extending to the
coast of Vigan.
• It is an island whose geologic structure consists of reefs with at least 6
prominent rocks rising above water at high tide, enclosing a lagoon.
• The total area of Isla Bajo de Masinloc is 16,500 hectares bigger
than Quezon City at 15,100 hectares.
 ARBITRAL RULING
• 1. Nine-dash lines and historic claims to waters lacks basis under UNCLOS;
• 2. Filipino and Chinese fishermen have traditional fishing rights in
Scarborough Shaol. It was illegal for China to have prevented Filipino
fishermen from fishing in the area;
• 3. None of the alleged islands within the disputed area can generate 200
nautical miles of EEZ. They can generate only 12 nautical miles of territorial
seas.
• 4. Mischief Reef, Subi Reef, Second Thomas Shoal, Gaven Reef and Hughes
Reef are low tide elevations and part of the Philippine EEZ.
• 5. China is guilty of acts that are damaging to the environment.
 RECAP: WHAT IS UNCLOS
• UNCLOS, RATIFIED BY 165 STATES COMPRISING 85% OF THE ENTIRE MEMBERSHIP
OF THE UNITED NATIONS, IS THE PRIMARY INTERNATIONAL LAW GOVERNING THE
USE OF THE OCEANS AND SEAS OF PLANET EARTH.
• SPECIFICALLY, UNCLOS GOVERNS THE USE OF THE FOLLOWING MARITIME ZONES:
(A) INTERNAL WATERS OR ARCHIPELAGIC WATERS, THE LANDWARD WATERS
ADJACENT TO THE TERRITORIAL SEA; (B) TERRITORIAL SEA, AN AREA OF 12 NM
FROM THE BASELINES ALONG THE COAST; (C) EXCLUSIVE ECONOMIC ZONE (EEZ),
AN AREA OF 200 NM FROM THE BASELINES; (D) EXTENDED CONTINENTAL SHELF
(ECS), AN ADDITIONAL AREA OF 150 NM FROM THE OUTER LIMITS OF THE EEZ; AND
(E) THE HIGH SEAS AREA, WHICH IS THE MARITIME ZONE BEYOND THE ECS.
• THE HIGH SEAS BELONG TO ALL STATES, WHETHER COASTAL OR LAND-LOCKED.
 DEFINITION OF MARITIME ZONES
• The Exclusive Economic Zone is an area beyond and
adjacent to the territorial sea, which shall not extend
beyond 200 nautical miles from the baseline from
which the territorial sea is measured.
• Territorial Sea is 12 nautical miles from the baseline.
• Contiguous Zone is 24 nautical miles from the
baseline.
• Continental Shelf is 150 nautical miles from the
baseline.
 SCOPE OF PROTECTION OF UNCLOS

• UNCLOS governs maritime disputes on overlapping maritime zones like

overlapping territorial seas, eezs and ecss.
• UNCLOS does not govern territorial disputes, which are sovereignty or
ownership issues over land territory like islands or rocks above water at
high tide.
• Rocks that are below water, or submerged, at high tide are not considered
land and thus disputes over such rocks are governed by UNCLOS.
• UNCLOS provides for a compulsory dispute settlement mechanism over
maritime disputes among its member states, including disputes involving the
interpretation or application of the provisions of UNCLOS.
CREATION OF ARTIFICIAL ISLANDS
RECLAIMED LANDS ARE NOT COVERED BY UNCLOS