Mark Anthony Q.

Pesigan
Alternative Dispute Resolution

June 1, 2016
Atty. Maningas

Executive Summary
Case Number 2013-19
The Republic of Philippines v. The People's Republic of China
Overview
On 22 January 2013, the Republic of the Philippines instituted arbitral proceedings
against the Peoples Republic of China under Annex VII to the United Nations Convention on
the Law of the Sea (the Convention), with respect to the dispute with China over the maritime
jurisdiction of the Philippines in the West Philippine Sea. On 19 February 2013, China
presented a Note Verbale to the Philippines in which it described the Position of China on the
South China Sea issues, and rejected and returned the Philippines Notification. The
Permanent Court of Arbitration acts as Registry in this arbitration.
Representatives of the claimant(s)
Agent
Solicitor General Florin T. Hilbay
Office of the Solicitor General, Makati, Republic of the Philippines
Counsel
Paul S. Reichler
Lawrence H. Martin
Foley Hoag LLP
Professor Bernard H. Oxman
University of Miami School of Law
Professor Philippe Sands QC
Matrix Chambers
Professor Alan Boyle
Essex Court Chambers
Representatives of the respondent(s)
China has not appointed an agent. In a Note Verbale to the PCA on 1 August 2013, China
reiterated its position that it does not accept the arbitration initiated by the Philippines.
The Case
There are two primary legal quarrels at the core of the South China Sea conflict: the dispute
over territory and the dispute over the substance and application of maritime law.
Territorial Dispute
In the South China Sea dispute, the claimants are squabbling first and foremost over
sovereignty over the Seas territorial features. At its most basic, the claimants disagree over who
owns each of the features. Some claimantslike Brunei and Malaysiahave advanced

relatively modest territorial claims. Otherslike the Philippines and especially Vietnamhave
asserted ownership over a much larger proportion of the Seas features. Finally, China (and
Taiwan) have laid claim to every piece of territory in the entire Sea.
To back up their claims, the six states have relied on the law of sovereignty. A bit of
background: the law of sovereignty is part of customary international law, and it originally
prescribed five different methods of acquiring sovereignty over territory. One of those methods
conquestis no longer consider lawful (Crimea notwithstanding), but it remains potentially
relevant as the historical source of authority for some of the disputants claims. The other four
methods continue to be recognized today. States can gain territory through the process of
accretion, or the expansion of existing territory through natural processes like volcanic
eruptions. States can also transfer sovereignty over territory to each other through the process
of cession. If a state discovers and then effectively occupies new territory (known as terra
nullius), then it can acquire sovereignty over that unclaimed territory through the process of
effective occupation. Finally, a state can gain sovereignty over another states territory by
occupying it publicly, peacefully, and uninterruptedly for a sufficiently long time. This process is
called prescription, and it mirrors the doctrine of adverse possession in American property law.
Notably, sovereignty law does not put stock in the proximity of a state to its territorial
claims. The Permanent Court of Arbitration held in the highly influential Island of Palmas case
that it is impossible to show the existence of a rule of positive international law to the effect that
islands situated outside territorial waters should belong to a State from the mere fact that its
territory forms the terra firma (nearest continent or island of considerable size). So while it may
seem absurd to many that Beijing may have a stronger claim than Manila to an island right off
the Philippine coast, that outcome is not foreclosed by the law of sovereignty.
In the South China Sea, the six claimants have mixed and matched sovereignty laws
doctrines in order to stitch together legally convincing claims. Some claimants, like China and
Vietnam, have tried to unearth a long history of effective occupation by their national
predecessors. Vietnam has also tried to justify its ownership by tracing title back to its colonial
occupier, France. In contrast, the Philippines has argued thatwhatever the history of Chinese
and Vietnamese usethe Spratly Islands were abandoned by the time that Philippine citizen
Thomas Cloma stumbled upon them in the 1950s, and that Cloma was able to acquire and then
transfer sovereignty over them to the Philippines.
Sifting through these claims is a Herculean task, and one that may prove impossible in
the end. Indeed, after surveying the available evidence, Bill Hayton argues that the legal
question itself makes no conceptual sensethe Western idea of sovereignty or ownership
simply does not translate into the historical context of the South China Sea, where sovereignty
was often overlapping, graduated, or patchy. As a result, [i]n no sense did any state or people
own the Sea.
In any event, the claimants have shown little appetite thus far for handing over the
territorial issues in the South China Sea dispute to an impartial tribunal, perhaps because no
claimant is especially confident in their legal justifications. As a result, the territorial issue seems
most likely to be resolved ultimately on the basis of a political settlement rather than a legal
ruling.
The parties are far from beginning serious negotiations on this score, however. China
insists on bilateral negotiations, while the smaller claimants favor multilateral talks where they

can band together to counteract their northern neighbors heft. For now, then, the legal issue is
likely to remain overshadowed by changing events on the ground.
Maritime Dispute
Alongside the territorial dispute, the claimants have also clashed over issues related to
maritime law. Whereas sovereignty law governs who may exert full sovereignty over the
territorial features of the South China Sea, maritime law governs what jurisdiction states may
exert over the nearby waters and the seabed underneath. So, for instance, the United States
has sovereignty over the territory of Hawaii, but it is maritime law that decides the extent of its
offshore jurisdiction. Because maritime law reaches beyond the disputed territories, it has pulled
a variety of other parties into the vortex of the South China Sea dispute (including Indonesia and
the United States).
Maritime law has largely been codified in the U.N. Convention on the Law of the Sea
(UNCLOS). The vast majority of nations have ratified UNCLOS, including all the primary
claimants in the South China Sea dispute. While the treaty has not yet been ratified by the
United States, Washington has made clear that it sees most of the treatys substantive
provisions as reflecting customary international law binding on all countries.
Yet despite the high degree of consensus surrounding UNCLOS, there are several
statutory ambiguities or gaps that have precipitated contested interpretations by the claimants.
To begin with, the claimants disagree about the scope of jurisdiction that UNCLOS
entitles them to over the South China Seas waters. In particular, the claimants have different
views about the boundaries of the various national exclusive economic zones (EEZs) and
continental-shelf zones. Part of the disagreement stems from the territorial disputemaritime
zones are drawn from a territorial baseline, so without agreement over that baseline, states will
disagree about the size and shape of the zones. But the disagreement also stems from
differences of opinion about how UNCLOS classifies each of the territorial features. Under
UNCLOS, certain territorial features are entitled to greater maritime zones than others, as Ive
explained in greater depth before. So for example, if a feature (1) surfaces above the ocean at
high tide, and (2) can sustain human habitation or economic life of [its] own, then it is entitled
to a 200-nautical-mile EEZ, in which the sovereign may explor[e] and exploit[], conserv[e] and
manag[e] the natural resources, whether living or non-living, of the waters superjacent to the
seabed and of the seabed and its subsoil, among other rights. Because the claimants disagree
over how to classify the territorial features of the South China Sea (for instance, whether they
can sustain human habitation or economic life of their own), they also disagree about the scope
and type of the attached maritime zones.
Many of these issues are playing out in the Philippiness arbitration case against China.
In January 2013, Manila sued China for breaching the provisions of UNCLOS. In its case, the
Philippines is making three primary claims, all related to maritime jurisdiction: first, that Beijing
claims more of the South China Seas waters than the Convention permits; second, and
relatedly, that China has claimed 200-nautical-mile EEZs for a number of insular features not
entitled to them; and third, that China has violated other rights guaranteed to the Philippines by
UNCLOS. Right now, the tribunal is still deciding on its own jurisdiction to hear the case
Beijing argues that the maritime issues are too entwined with the territorial ones to be capable
of resolution on their ownbut if the court moves to the merits, then it may deal a serious blow
to Chinas maritime claims as encapsulated in the infamous nine-dash line.