Philippines vs.

China

Philippines sought for rulings in respect of four matters:

1. China’s claims to historic rights within its so-called “nine-dash line”

2. Characterization of certain maritime features claimed by both countries (islands, rocks, low-tide elevations
or submerged banks)
3. China’s interference of Philippines’ sovereign rights and freedom under the Convention (through
construction and fishing activities)
4. China’s aggravation of dispute between parties by its large-scale land reclamation and construction of
artificial islands

China’s question of jurisdiction

- Released China’s Position Paper

- Informal communication as an equivalent to an objection to jurisdiction

CHINA INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA

(ITLOS)
subject-matter of the arbitration is the territorial the matters submitted to arbitration by the Philippines do not
sovereignty over several maritime features in concern sovereignty
the South China Sea, which is beyond the scope
of the Convention
Parties’ dispute is actually about maritime a dispute concerning whether a State has an entitlement to a
boundary delimitation and therefore excluded maritime zone is a distinct matter from the delimitation of maritime
from dispute settlement by Article 298 of the zones
Convention
China and the Philippines have agreed, through 2002 China–ASEAN Declaration on the Conduct of Parties in
bilateral instruments… By unilaterally initiating the South China Sea… is a political agreement and not legally
the present arbitration, the Philippines has binding, does not provide a mechanism for binding settlement, does
breached its obligation under international law not exclude other means of dispute settlement, and therefore does
not restrict the Tribunal’s jurisdiction under Articles 281 or 282

exception from jurisdiction for disputes concerning China claims historic rights to resources within the ‘nine-dash
“historic title” in Article 298 of the Convention line’, but does not claim historic title over the waters of the South
China Sea
exception from jurisdiction in Article 298 for Tribunal held that it could only address such submissions if there
disputes concerning sea boundary delimitation was no possibility that China could have an entitlement to an
exclusive economic zone overlapping that of the Philippines…

China has no possible entitlement to an exclusive economic zone

overlapping that of the Philippines in the Spratly Islands, the
Tribunal held that the Philippines’ submissions were not
dependent on a prior delimitation of a boundary.
exception from jurisdiction in Article 298 for Would apply only if the Philippines’ Submissions related to law
disputes concerning law enforcement activities enforcement activities in China’s exclusive economic zone,
in the exclusive economic zone however, the Philippines’ Submissions related to events in the
Philippines’ own exclusive economic zone or in the territorial
sea
exception from jurisdiction in Article 298 for Considered that the stand-off between Philippine marines on
disputes concerning military activities Second Thomas Shoal and Chinese naval and law enforcement
vessels constituted military activities and concluded that it lacked
jurisdiction over the Philippines’ Submission No. 14(a)-(c).

China emphasized, however, its non-military nature in the

construction of artificial islands at seven features in the Spratly
Islands. Thus, Article 298 did not pose an obstacle in its jurisdiction.
15 Submissions and Corresponding Decisions:

PHILIPPINES ITLOS
(1) China’s maritime entitlements in the South The final text of the Convention gives other States only a limited
China Sea, like those of the Philippines, may right of access to fisheries in the exclusive economic zone (in the
not extend beyond those expressly permitted event the coastal State cannot harvest the full allowable catch)
by the United Nations Convention on the Law and no rights to petroleum or mineral resources.
of the Sea;
China had historic rights to resources in the waters of the South
(2) China’s claims to sovereign rights China Sea, such rights were extinguished by the entry into force
jurisdiction, and to “historic rights”, with respect of the Convention to the extent they were incompatible with the
to the maritime areas of the South China Sea Convention’s system of maritime zones.
encompassed by the so-called “nine-dash line”
are contrary to the Convention and without There was no evidence that China had historically exercised
lawful effect to the extent that they exceed the exclusive control over the waters of the South China Sea or
geographic and substantive limits of China’s prevented other States from exploiting their resources.
maritime entitlements expressly permitted by
UNCLOS; There was no legal basis for China to claim historic rights to
resources, in excess of the rights provided for by the Convention,
within the sea areas falling within the ‘nine-dash line’.

(3) Scarborough Shoal generates no Under Articles 13 and 121 of the Convention, features that are
entitlement to an exclusive economic zone or above water at high tide generate an entitlement to at least a 12
continental shelf; nautical mile territorial sea, whereas features that are submerged
at high tide generate no entitlement to maritime zones.
(4) Mischief Reef, Second Thomas Shoal, and Convention classifies features on the basis of their natural
Subi Reef are low-tide elevations that do not condition.
generate entitlement to a territorial sea,
exclusive economic zone or continental shelf, - The Tribunal agreed with the Philippines that
and are not features that are capable of Scarborough Shoal, Johnson Reef, Cuarteron Reef, and
appropriation by occupation or otherwise; Fiery Cross Reef are high-tide features and that Subi
Reef, Hughes Reef, Mischief Reef, and Second Thomas
(5) Mischief Reef and Second Thomas Shoal Shoal were submerged at high tide in their natural
are part of the exclusive economic zone and condition.
continental shelf of the Philippines;
- Tribunal disagreed with the Philippines regarding the
(6) Gaven Reef and McKennan Reef (including status of Gaven Reef (North) and McKennan Reef and
Hughes Reef) are low-tide elevations that do concluded that both are high tide features.
not generate entitlement to a territorial sea,
exclusive economic zone or continental shelf, Under Article 121 of the Convention, islands generate an
but their low-water line may be used to entitlement to an exclusive economic zone of 200 nautical miles
determine the baseline from which the breadth and to a continental shelf, but “[r]ocks which cannot sustain
of the territorial sea of Namyit and Sin Cowe, human habitation or economic life of their own shall have no
respectively, is measured; exclusive economic zone or continental shelf.” The creation of
the exclusive economic zone and was intended to prevent
(7) Johnson Reef, Cuarteron Reef and Fiery insignificant features from generating large entitlements to
Cross Reef generate no entitlement to an maritime zones.
exclusive economic zone or continental shelf;
Entitlements of a feature depend on
(a) the objective capacity of a feature,
(b) in its natural condition, to sustain either
(c) a stable community of people or
(d) economic activity that is neither dependent on outside
resources nor purely extractive in nature.
- the current presence of official personnel on many of the
features does not establish their capacity, in their natural
condition, to sustain a stable community of people and
considered that historical evidence of habitation or
economic life was more relevant to the objective capacity
of the features.
- temporary use of the features by fishermen did not
amount to inhabitation by a stable community and that all
of the historical economic activity had been extractive in
nature.
- all of the high-tide features in the Spratly Islands are
legally “rocks” that do not generate an exclusive
economic zone or continental shelf.

(8) China has unlawfully interfered with the Mischief Reef, Second Thomas Shoal and Reed Bank are
enjoyment and exercise of the sovereign rights submerged at high tide, form part of the exclusive economic zone
of the Philippines with respect to the living and and continental shelf of the Philippines, and are not overlapped
non-living resources of its exclusive economic by any possible entitlement of China, the Tribunal concluded that
zone and continental shelf; the Convention is clear in allocating sovereign rights to the
Philippines with respect to sea areas in its exclusive economic
(9) China has unlawfully failed to prevent its zone.
nationals and vessels from exploiting the living
resources in the exclusive economic zone of China had
the Philippines; (a) interfered with Philippine petroleum exploration at Reed Bank,
(b) purported to prohibit fishing by Philippine vessels within the
(10) China has unlawfully prevented Philippine Philippines’ exclusive economic zone,
fishermen from pursuing their livelihoods by (c) protected and failed to prevent Chinese fishermen from
interfering with traditional fishing activities at fishing within the Philippines’ exclusive economic zone at
Scarborough Shoal; Mischief Reef and Second Thomas Shoal, and
(d) constructed installations and artificial islands at Mischief Reef
(11) China has violated its obligations under without the authorization of the Philippines. The Tribunal
the Convention to protect and preserve the therefore concluded that China had violated the Philippines’
marine environment at Scarborough Shoal, sovereign rights with respect to its exclusive economic zone and
Second Thomas Shoal, Cuarteron Reef, Fiery continental shelf.
Cross Reef, Gaven Reef, Johnson Reef,
Hughes Reef and Subi Reef; - China had violated the Philippines’ sovereign rights with
respect to its exclusive economic zone and continental shelf.
(12) China’s occupation of and construction
activities on Mischief Reef (a) violate the Scarborough Shoal is above water at high tide, it generates an
provisions of the Convention concerning entitlement to a territorial sea, its surrounding waters do not form
artificial islands, installations and structures; part of the exclusive economic zone
(b) violate China’s duties to protect and
preserve the marine environment under the - China had violated its duty to respect to the traditional
Convention; and fishing rights of Philippine fishermen by halting access to
(c) constitute unlawful acts of attempted the Shoal after May 2012
appropriation in violation of the Convention;
China has violated its obligation under Articles 192 and 194 of
(13) China has breached its obligations under the Convention to preserve and protect the marine environment
the Convention by operating its law with respect to fragile ecosystems and the habitat of depleted,
enforcement vessels in a dangerous manner, threatened, or endangered species.
causing serious risk of collision to Philippine
vessels navigating in the vicinity of China had breached its obligations under the Convention on the
Scarborough Shoal; International Regulations for Preventing Collisions at Sea, 1972,
and Article 94 the Convention concerning maritime safety

(14) Since the commencement of this China had violated its obligations to refrain from aggravating or
arbitration in January 2013, China has extending the Parties’ disputes during the pendency of the
unlawfully aggravated and extended the settlement process.
dispute by, among other things:

(a) interfering with the Philippines’ rights of

navigation in the waters at, and adjacent to,
Second Thomas Shoal;
(b) preventing the rotation and resupply of
Philippine personnel stationed at Second
Thomas Shoal;
(c) endangering the health and well-being of
Philippine personnel stationed at Second
Thomas Shoal; and
(d) conducting dredging, artificial island-
building and construction activities at Mischief
Reef, Cuarteron Reef, Fiery Cross Reef, Gaven
Reef, Johnson Reef, Hughes Reef and Subi
Reef; and

(15) China shall respect the rights and

freedoms of the Philippines under the
Convention, shall comply with its duties under
the Convention, including those relevant to the
protection and preservation of the marine
environment in the South China Sea, and shall
exercise its rights and freedoms in the South
China Sea with due regard to those of the
Philippines under the Convention.