Irabon, Ma. Joanne B.

Public International Law

2D Atty. Eliza Yamamoto

South China Sea Arbitration

PHILIPPINES

On 22 January 2013 the Philippines notified the People's Republic of China of its
intention to submit elements of the two countries' disputes concerning sovereignty and maritime
jurisdiction in the South China Sea to an arbitration tribunal established under the dispute
resolution mechanisms of the 1982 United Nations Convention on the Law of the Sea
(UNCLOS).

The Notification and Statement of Claim issued by the Philippines sets out the political
and legal context for the move, noting that efforts to find a negotiated settlement to the dispute
have been exhausted following seventeen years of fruitless discussions. The Notification notes
that China has made a declaration under Article 298 of UNCLOS which excludes the application
of compulsory binding procedures for the settlement of certain types of dispute, including
disputes relating to maritime boundary delimitations and those involving historic bays or titles.
However, the Philippines argues that none of these exceptions is applicable to the Philippines'
claims in this arbitration, suggesting that the present dispute concerns:

(a) Whether, in light of China's repeated assertions of alleged "sovereign rights and
jurisdiction" within the so-called "nine dash line", the parties' respective rights and obligations in
regard to the waters, seabed and maritime features of the South China Sea are governed by the
provisions of UNCLOS…;

(b) Whether China's Claims based on the "nine dash line" are inconsistent with those
provisions;
 (c) Whether, under Article 121 of UNCLOS, certain of the maritime features in the South
China Sea are islands, low tide elevations or submerged banks, and whether they are capable of
generating entitlements to maritime zones greater than 12M; and

(d) Whether China has violated the right of navigation of the Philippines in the waters of
the South China Sea, and the rights of the Philippines in regard to the living and non-living
resources within its exclusive economic zone and continental shelf.

PEOPLE’S REPUBLIC OF CHINA

On 7 December 2014, the Chinese government released the Position Paper of the
Government of the People's Republic of China on the Matter of Jurisdiction in the South China
Sea Arbitration Initiated by the Republic of the Philippines, pointing out that the Philippines'
initiation of arbitration breaches the agreement between the two states, violates the United
Nations Convention on the Law of the Sea (UNCLOS), and goes against the general practice of
international arbitration, and that the Arbitral Tribunal has no jurisdiction.

China believes the court has no jurisdiction to decide on the matter. As such, it rejects the
case and will not accept or participate in the arbitration. As discussed in the Chinese
government’s Position Paper, two reasons for rejection stand out. First, on August 25, 2006,
China deposited, as permitted under Article 298 of UNCLOS, a statement that China will not
accept compulsory dispute settlement procedures (including compulsory arbitration) concerning
maritime delineation. Second, China rejects the court’s authority because, according to the
Beijing, the Philippines’ argument is based on a “cunningly packaged” attempt to address
matters of territorial sovereignty – not the legal status of disputed waters, islands, and reefs as the
court is set to investigate. This conflicts with China’s standpoint that the matters of sovereignty
and legal status are inseparable. Ultimately, the case, from China’s perspective, is not an attempt
to attain peaceful resolution of the South China Sea issue, but rather a unilateral effort to force a
resolution of the disputes on the Philippines’ own terms.
RULING OF THE ARBITRAL TRIBUNAL

The Philippines’ claims fell into four general categories. The ruling of the Tribunal on
each category of claims is summarized below:

1. The broadest claim was a challenge to China’s “nine-dash line” covering most of the
South China Sea. China has never clarified whether the line represents a claim to the islands
within the line and their adjacent waters; a boundary of national sovereignty over all the enclosed
waters (including, but not limited by, the land features inside the line); or a “historic” claim of
sovereignty or some other set of historic rights to the maritime space within the line. The
Philippines sought a declaration that the countries’ respective rights and obligations regarding
the waters, seabed, and maritime features of the South China Sea are governed by UNCLOS. As
such, China’s claims based on any “historic rights” to waters, seabed, and subsoil within the
nine-dash line are contrary to UNCLOS and invalid.

UNCLOS “comprehensively” governs the parties’ respective rights to maritime areas in

the South China Sea. Therefore, to the extent China’s nine-dash line is a claim of “historic
rights” to the waters of the South China Sea, it is invalid. Whatever historic rights China may
have had were extinguished when UNCLOS was adopted, to the extent those rights were
incompatible with UNCLOS.

2. The Philippines sought a determination as to whether certain land features in the

Spratly Islands claimed by both China and the Philippines are properly characterized as islands,
rocks, low tide elevations (LTEs), or submerged banks. Under UNCLOS, an “island” generates
both a territorial sea of 12 nautical miles and an exclusive economic zone (EEZ) of up to 200
nautical miles, subject to delimitation of a maritime boundary with any other countries’
overlapping territorial seas or EEZs. A “rock” is entitled to a territorial sea no greater than 12
nautical miles, but not an EEZ. LTEs and submerged banks do not generate any such
entitlements.

None of the features in the Spratly Islands generates an EEZ, nor can the Spratly Islands
generate an EEZ collectively as a unit. As such, the Tribunal declared certain areas are within the
Philippines’ EEZ and not overlapped by any possible Chinese entitlement.
 The baseline of analysis is what the features can sustain in their “natural condition” (i.e.,
not after construction of artificial islands, installation of desalination plants, etc.). Based on
historical evidence, none of the features in the Spratly Islands can sustain either a stable
community of people or economic activity that is not dependent on outside resources or purely
extractive in nature. The current presence of personnel on the features is dependent on outside
support and does not reflect the capacity of the features in their natural condition.

3. The Philippines sought a declaration that China violated UNCLOS by interfering with
the Philippines’ rights and freedoms within its EEZs. This includes preventing Philippine fishing
around Scarborough Shoal, violating UNCLOS’s environmental protection provisions through
construction and fishing activities that have harmed the marine environment (including at
Scarborough Shoal, Second Thomas Shoal, and Mischief Reef), and by dangerously operating
law enforcement vessels around Scarborough Shoal.

China violated the Philippines’ sovereign rights in its EEZ. It did so by interfering with
Philippine fishing and hydrocarbon exploration; constructing artificial islands; and failing to
prevent Chinese fishermen from fishing in the Philippines’ EEZ. China also interfered with
Philippine fishermen’s traditional fishing rights near Scarborough Shoal (without prejudice to the
question of sovereignty over Scarborough Shoal). China’s construction of artificial islands at
seven features in the Spratly Islands, as well as illegal fishing and harvesting by Chinese
nationals, violate UNCLOS obligations to protect the marine environment. Finally, Chinese law
enforcement vessels unlawfully created a serious risk of collision by physically obstructing
Philippine vessels at Scarborough Shoal in 2012.

This set of holdings depended on the Tribunal finding that certain areas are within the
Philippines’ EEZ and not subject to possible overlapping Chinese entitlements. It also depended
on finding that activities such as island construction are, in accordance with China’s own public
statements, not “military activities” and therefore not excluded from jurisdiction under
UNCLOS. Once this was established, the Tribunal considered Chinese activities in the relevant
areas and found that China had (a) interfered with Philippine petroleum exploration at Reed
Bank, (b) purported to prohibit fishing by Philippine vessels within the Philippine EEZ, (c)
protected and failed to prevent Chinese fishermen from fishing within the Philippine EEZ at
Mischief Reef and Second Thomas Shoal, and (d) constructed artificial islands/installations at
Mischief Reef without the Philippines’ authorization. As for Scarborough Shoal, regardless of
who has sovereignty, both Philippine and Chinese fishermen have “traditional fishing rights” at
the Shoal that were not extinguished by UNCLOS, and China violated the Philippines’ rights by
entirely preventing Filipino fishermen from fishing near Scarborough Shoal after May 2012. In
addition, Chinese artificial island construction has caused “severe harm to the coral reef
environment” and China has failed to stop its nationals from engaging in “harmful” and
“destructive” harvesting and fishing of endangered sea turtles, coral, and giant clams in violation
of UNCLOS. Finally, Chinese law enforcement vessels violated maritime safety obligations by
creating a serious risk of collision on two occasions in April and May 2012 during the
Scarborough Shoal standoff.

4. The Philippines sought a declaration that China’s recent actions, specifically its land
reclamation and construction of artificial islands in the Spratly Islands after the arbitration was
commenced, violated the obligations UNCLOS places on states to refrain from conduct that
“aggravates and extends” a dispute while dispute resolution proceedings are pending.

China has aggravated and extended the disputes through its dredging, artificial island-
building, and construction activities.

While these proceedings were pending, China has built a large island on Mischief Reed,
an LTE within the Philippines’ EEZ; caused irreparable harm to the marine ecosystem; and
permanently destroyed evidence of the natural condition of the features at issue.

REFERENCES:

Philippines Notification and Statement of Claims on the West Philippine Sea, January 22, 2013

Position Paper of the Government of the People's Republic of China on the Matter of Jurisdiction
in the South China Sea Arbitration Initiated by the Republic of the Philippines, December 7,
2014

https://www.lawfareblog.com/tribunal-issues-landmark-ruling-south-china-sea-arbitration