Figure 3 (Lifted from page 46 of the Memorial of the RP)

23
2002 Declaration
Another diverging view between the Philippines and China relates to the 2002 Declaration
between the ASEAN and China. For China, the 2002 Declaration, particularly Paragraph 4, which
states that – “[t]he Parties concerned undertake to resolve their territorial and jurisdictional disputes
by peaceful means, without resorting to the threat or use of force, through friendly consultations
and negotiations by sovereign states directly concerned, in accordance with universally recognized
principles of international law, including the 1982 UN Convention on the Law of the Sea" - is a
binding international agreements, which precludes recourse to other means of dispute resolution
but through “friendly consultations and negotiations.” For the Philippines, given the content and
circumstances of the adoption of the 2002 Declaration, the said document does not fall within the
ambit of a binding international agreement, but at best, it is a non-binding political instrument,
which enshrines the goals and aspirations of the Parties. The Philippines argued that the Parties
came up with the 2002 Declaration, because the Parties failed to conclude a Code of Conduct
(COC) in the South China Sea. Further, the 2002 Declaration is not a binding agreement, but just
stop-gap measure in the light of the inability of the Parties to achieve a consensus on four major
areas of disagreement: the geographic scope of the code of conduct; restrictions on construction
on occupied and unoccupied features; military activities in the waters adjacent to the Spratly
Islands; and whether or not fishermen found in disputed waters could be detained and arrested.56
Furthermore, although it may sound like putting words into China’s mouth, the Philippines even
cited that H.E. Li Keqiang himself pronounced that the 2002 Declaration is “an important political
agreement reached among China and ASEAN countries.”57 Finally, the Philippine argued that the
political and provisional nature of the 2002 Declaration is further underscored by Paragraph 10, in
which the Parties reaffirm the future adoption of a COC in the South China Sea; it is the latter,
which the Parties intend to be the their binding international agreement. Given these premises, the
Philippines has taken the position that the 2002 Declaration is not a binding international
agreement, and hence its provisions, particularly Paragraph 4, has no obligatory force to the extent
that the Philippines is not limited to settle its issues with China, but through friendly consultations
and negotiations. The Philippines even adds that the language of Paragraph 4 itself recognizes

56Memorial of the RP, 235.

57Id, citing the Remarks by H. E. Li Keqiang, Premier of the State Council of PRC, at the 16th ASEAN-China Summit
(16 Oct. 2013)

24
resolution of disputes pursuant to the provisions of UNCLOS. Taking all of these together, the
Philippines is in firm belief that it is merely exercising its rights under the UNCLOS and is not acting
in derogation of any international agreement.

III. Highlight of the Arbitral Award on Jurisdiction and Admissibility of the Permanent
Court of Arbitration (PCA)

A. General Findings of the PCA on Jurisdictional Issues

The Tribunal made a conclusion that the China’s Position Paper and its communications
effectively constitute a plea concerning the Tribunal’s jurisdiction.58 Further, on jurisdictional issues
not raised by China, the Tribunal is taking it upon itself to determine where it has jurisdiction over
the same issues to the greatest extent possible.59 As regards submissions which may depend upon
the nature and validity of any claim by China to historic rights in the South China Sea, the status of
certain maritime features of the South China Sea, the maritime zone in which the alleged Chinese
law enforcement activities took place, and the upon whether certain Chinese activities are military
in nature, the Tribunal concluded that the nature of these submissions is a merits determination,
and hence the Tribunal cannot decide on the matter at this point in the proceedings.60 As a result,
the Tribunal reserves its decision on its jurisdiction with respect to these particular submissions for
consideration in conjunction with the merits of the Philippines’ claims.
The succeeding sections are brief discussions of each of the 15 submissions of the
Philippines and the decision of the Tribunal in each of these submissions with respect to the issue
of the Tribunal’s jurisdiction.

B. Philippine Submissions within the Jurisdiction of the PCA (Submissions No. 3, 4, 6, 7,

10, 11, and 13 as stated in the Philippine Memorial dated 30 March 2014)

Submission 3 refers to a dispute concerning the status of Scarborough Shoal as an

“island” or “rock” within the meaning of Article 121 of the Convention.61 It is not barred from the

58 PCA Award on Jurisdiction and Admissibility, 139.

59 Id.
60 Id, 140.
61 Id, 142.

25
Tribunal’s consideration by any requirement of Section 1 of Part XV; it does not concern issues of
sovereignty over the feature; it does not involve a sea boundary limitation; and nor does it
potentially fall under any of exceptions or limitations under Article 297 or 298 of the UNCLOS.
Submission 4 is a dispute concerning the status of Mischief Reef, Second Thomas Shoal,
and Subi Reef as “low-tide elevations” within the meaning of Article 13 of the Convention. 62 It is not
barred from the Tribunal’s consideration by any requirement of Section 1 of Part XV; it does not
concern issues of sovereignty over the feature; and it does not involve a sea boundary limitation.
However, the Tribunal raised a caveat, that should there be overlapping entitlements to an EEZ or
continental shelf between China and the Philippines over these features, the Tribunal considers
that the existence of overlapping entitlements may have practical considerations for the selection of
the vertical datum and tidal model against which the status of the features is to be assessed. 63
Submission 6 is a dispute concerning the status of Gaven Reef and McKennan Reef
(including Hughes Reef) as “low-tide elevations” within the meaning of Article 13 of the
Convention.64 The Tribunal raised the same grounds and caveat for this submission as in the case
of Submission 4.
Submission 7 a dispute concerning the status of Johnson Reef, Cuarteron Reef, and Fiery
Cross Reef as “islands” or “rocks” within the meaning of Article 121 of the Convention.65 The
Tribunal raised the same grounds for this submission as in the case of Submission 3.
Submission 10 is a dispute concerning China’s actions that allegedly interfere with the
traditional fishing activities of Philippine nationals at Scarborough Shoal.66 It is not barred from the
Tribunal’s consideration by any requirement of Section 1 of Part XV; it does not concern issues of
sovereignty over the feature; it does not involve a sea boundary limitation; and nor does it
potentially fall under any of exceptions or limitations under Article 297 or 298 of the UNCLOS.
Submission 11 is a dispute concerning the protection and preservation of the marine
environment at Scarborough Shoal and Second Thomas Shoal and the application of Articles 192
and 194 of the Convention.67 It is not barred from the Tribunal’s consideration by any requirement
of Section 1 of Part XV; it does not concern issues of sovereignty over the feature; and it does not

62 Id.
63 Id.
64 Id, 143.
65 Id.
66 Id, 145.
67 Id.

26
involve a sea boundary limitation. Note though, that the Tribunal added that depending on the
status of these features (if the harmful activities fall within the territorial seas or the EEZ), the basis
of the jurisdiction of the Tribunal may differ, but nevertheless, in both occasions, the Tribunal has
jurisdiction.
Submission 13 is a dispute concerning the operation of China’s law enforcement activities
in the vicinity of Scarborough Shoal and the application of Articles 21, 24, and 94 of the
Convention.68 It is not barred from the Tribunal’s consideration by any requirement of Section 1 of
Part XV; it does not concern issues of sovereignty over the feature; and it does not involve a sea
boundary limitation. The Tribunal understands that this dispute relates principally to events
occurring in the territorial sea surrounding Scarborough Shoal and notes that Article 298(1)(b)69
has no application in the territorial sea.70

C. Philippine Submissions Requiring Consideration of the Merits to Determine PCA

Jurisdiction (Submissions No. 1, 2, 5, 8, 9, 12, and 14 as stated in the Philippine
Memorial dated 30 March 2014)

Submission 1 and 2 are disputes concerning the source of maritime entitlements in the
South China Sea and the role of the UNLCOS.71 It is not barred from the Tribunal’s consideration
by any requirement of Section 1 of Part XV; it does not concern issues of sovereignty over the
feature; and it does not involve a sea boundary limitation. However, the Tribunal’s jurisdiction may
depend upon the nature and validity of any claim by China to historic rights in the South China Sea,
and hence this requires a merits determination.
Submission 5 is a dispute concerning the sources of maritime entitlements in the South
China Sea and whether a situation of overlapping entitlements to an exclusive economic zone or to

68 Id, 146.
69 1. When signing, ratifying or acceding to this Convention or at any time thereafter, a State may, without prejudice to
the obligations arising under section 1, declare in writing that it does not accept any one or more of the procedures
provided for in section 2 with respect to one or more of the following categories of disputes: …(b) disputes
concerning military activities, including military activities by government vessels and aircraft engaged in non-
commercial service, and disputes concerning law enforcement activities in regard to the exercise of sovereign
rights or jurisdiction excluded from the jurisdiction of a court or tribunal under article 297, paragraph 2 or 3;…
70 PCA Award on Jurisdiction and Admissibility, 146.
71 Id, 140.

27
a continental shelf exists in the area of Mischief Reef and Second Thomas Shoal.72 It is not barred
from the Tribunal’s consideration by any requirement of Section 1 of Part XV, and it does not
concern issues of sovereignty over the feature. However, it involves the possibility that China may
claim an “island” that falls within the ambit of Article 121 of the UNLCOS and within 200 NM of
these areas, and is capable of generating an EEZ and continental shelf. In that case, the resulting
overlap and the exclusion of boundary delimitation from the Tribunal’s jurisdiction by Article 298
would prevent the Tribunal from addressing this Submission.73
Submission 8 is a dispute concerning China’s actions that allegedly interfere with the
Philippines’ petroleum exploration, seismic surveys, and fishing in what the Philippines claims as its
exclusive economic zone.74 The Tribunal raised the same rationale for this submission as in the
case of Submission 5.
Submission 9 is a dispute concerning Chinese fishing activities in what the Philippines
claims as its exclusive economic zone.75 It is not barred from the Tribunal’s consideration by any
requirement of Section 1 of Part XV; it does not concern issues of sovereignty over the feature; and
it does not involve a sea boundary limitation. However, Article 297 and 298, restrict the Tribunal’s
jurisdiction over fishing and fisheries-related law enforcement in the event that the relevant areas
formed part of China’s EEZ.76 Again, it involves the possibility that China may claim an “island” that
falls within the ambit of Article 121 of the UNLCOS and within 200 NM of these areas, and is
capable of generating an EEZ and continental shelf. In that case, the resulting overlap and the
exclusion of boundary delimitation from the Tribunal’s jurisdiction by Article 298 would prevent the
Tribunal from addressing this Submission.
Submission 12 is a dispute concerning China’s activities on Mischief Reef and their effects
on the marine environment.77 It is not barred from the Tribunal’s consideration by any requirement
of Section 1 of Part XV; it does not concern issues of sovereignty over the feature; and it does not
involve a sea boundary limitation. However, the Tribunal’s jurisdiction to address these questions is

72 Id, 142.
73 Id, 143.
74 Id, 144.
75 Id.
76 Id.
77 Id, 146.

28
dependent on the status of Mischief Reef as an “island”, “rock”, or “low-tide elevation,”78 but the
status of Mischief Reef involves merits determination. In addition, the issue possibly involves
military activities, which may fall within the exclusions of Article 298. For these possible grounds of
jurisdictional objections, the Tribunal reserves the determination of its jurisdiction over Submission
12; the Tribunal will make a determination of its jurisdiction in conjunction with the merits of the
claim.
Submission 14 is a dispute concerning China’s activities in and around Second Thomas
Shoal and China’s interaction with the Philippine military forces stationed on the Shoal. Like
Submission 12, it is not barred from the Tribunal’s consideration by any requirement of Section 1 of
Part XV; it does not concern issues of sovereignty over the feature; and it does not involve a sea
boundary limitation. However, the Tribunal’s jurisdiction to address these questions is dependent
on the status of Second Thomas Shoal as an “island”, “rock”, or “low-tide elevation,”79 but the
status of Second Thomas Shoal involves merits determination. In addition, the issue possibly
involves military activities, which may fall within the exclusions of Article 298. For the same
rationale as in Submission 12, the Tribunal reserves the determination of its jurisdiction over
Submission 14.

D. Submission requiring Clarification

In Submission 15, the Philippines requests a declaration that “China shall desist from further
unlawful claims and activities,” 80 but the Tribunal views this claim to be unclear, making it unable to
determine the existence or lack of its jurisdiction. Hence, the Tribunal has requested the Philippines
to clarify and narrow down the scope of Submission 15.

IV. Possible Outcomes and Implications of the Final Arbitral Award of the PCA

A. Enforcement of the Award of the PCA

In a few weeks, the Tribunal will possibly issue its Final Award on the case. So where does
this lead us? Ideally, a final award in favor of the Philippines would only be meaningful if it can be
enforced. If the Philippines comes to the negotiating table and presents the Final Award to China,

78 Id.
79 Id, 147.
80 Id.

29
there is a good chance that China will not accept the PCA’s Final Award, especially if it negates its
interests. The Philippines can attempt to seek assistance from the UN Security Council with
respect to enforcement of the Final Award, but with China’s permanent member seat with a veto
power position, the Council would likely defer being involved in the enforcement. And besides, the
UN Security Council does not have power and the means to legally enforce such a decision, motu
proprio.
Given this situation, even if the Philippines receives a favorable judgment from the
Tribunal, the Philippine cannot directly enforce the Tribunal’s Final Award. The best venue would
be to indirectly enforce it by using the judgment as its bargaining chip in the negotiating table or by
forging a bilateral, multilateral, or regional action with members of the international community,
most likely with ASEAN country members (bilateral or multilateral) and the ASEAN (regional),
especially those directly affected by the nine-dash claim of China in the South China Sea.

B. Impact of Tribunal’s Final Award to Negotiations for Cooperation

From day one of the initiation of the arbitration, Manila knew the position Beijing. As I have
learned in class, unless President Xi Jinping wishes to commit political suicide for himself and the
Communist Party, Beijing’s position will not change, and Beijing will fight tooth and nail to defend
these disputed maritime features. The Philippine Government must have been aware of this even
before embarking on this aggressive action to push for its maritime entitlements in the disputed
features of the South China Sea, but even after my research, it still puzzles me as to what the
Philippine Government wishes to achieve at the end of this track. It is true that this aggressive
stance over the South China Sea dispute has a lot popular support from the Philippine masses, but
in the over all scheme of things, it does not sound like a winning solution for the Philippines. It is
possible that a favorable Final Award will serve as a good bargaining chip for the Philippines in the
negotiating table, but it is also possible that enforcement escalates the tension between China and
the Philippines to a level where China may just refuse sitting at the negotiating table with the
Philippines. What good does this bargaining chip does if there is no opportunity for negotiations to
speak of?
The Philippines is aware that its defense, capital, and technological resources pale in
comparison to that of China, and if China wages war over this dispute, the Philippines would lose
hands down. Hence, if war is not an option, the Philippines might still better off forging and
maintaining cooperation with China. However, with China feeling that this arbitration case is an

30
upfront against its territorial sovereignty over the disputed maritime features of the South China
Sea, China cannot be blamed if it closes its doors to the Philippines. With the size and importance
of China in the global economy, I find that a Final Award in favor of the Philippines is like double-
edged sword. It can be the best bargaining chip of the Philippines in the negotiating table, but it can
also be a bitter pill swallow if this fatally mars its relations with China.
As to third-party-in-interest and for the rest of world, everyone might be better off sitting on
the bench and waiting till the dust settles. Similarly situated coastal states, like Vietnam, might be
better off observing if and how this arbitration case will ultimately and actually serve its best
interest. The third parties, especially the likes of the United States, who has actively involved itself
in this maritime dispute even in the absence of direct injury and even if it is not party to the
UNCLOS, might also consider standing in the sideline to let the pressure off and let the parties
having breathing room to sit down and negotiate the dispute on their own terms.

C. Predictions
With a new President favoring cooperation with China with respect to the South China Sea
issue, should the PCA favorably grant the submissions of the Philippines, which pertain to maritime
entitlements, the Philippines will most likely take a less aggressive position with respect to
enforcement of the award. With China’s refusal to take part in any stage of the arbitration, it would
be impossible for China to accept the award sitting down. The Philippines will not win anything, but
an enemy out of China if it aggressively seeks to enforce the PCA final award. China will insist that
it does not submit itself to compulsory arbitration under Section 2 of Part XV of the UNCLOS; it has
declared so as early as 2006; and that the dispute is ultimately a territorial dispute, which is beyond
the jurisdiction of the PCA, and hence, the Philippines has no legal basis to enforce the PCA Final
Award against China. The Philippines can only hope this award can create moral and political
pressure unto China and that such pressure work to its favor or advantage. At best, the Philippines
will win on paper, but the status quo will prevail. China is in a better position to occupy, exploit, and
defend these areas than the Philippines. Given these strengths, China will continue to exercise its
powers over these disputed maritime features and the Philippines will remain at the mercy of
China.

31
 V. Conclusion
Merits of the case aside, will this arbitration proceeding actually and finally settle the
dispute between China and the Philippines or will it just escalate the tension even more between
the Parties? I would like to think it is more of the latter. Reading through the antecedents of this
case, it seems that, in the beginning, the Parties have been very careful not to touch anyone’s toes.
The dance went on for years, but at some point, the tension escalated. At times I wonder if the
“real” tension was preceded by arbitration or if the arbitration preceded the “real” tension. I also
wonder if these turn-of-events have something to do with tension between the two global economic
giants – China and the United States – and the Philippines is a just pawn caught in the middle. It
may sound like a conspiracy theory, but it seems plausible. I also wonder if it is true that, the
dispute between China and its neighbors is not about China’s voracious appetite for resources, but
rather about fortifying Beijing’s power and strategic hegemony in East Asia.81 These theories may
have some truths to it, but only time will reveal as to which motives really prevailed.
The Philippines has been in this dance with China for years. There were past plans for
cooperation to jointly explore and exploit these disputed maritime features in the South China Sea,
but they were on later shelved. The respective Parties have their own version why these joint
projects were shelved, with basically one Party ultimately blaming the other, but despite this,
negotiations and partnerships continued, until the Philippines launched this arbitration case.
Initially, the mere submission of the claims felt like a win for the Philippines. It reminded the world
of David taking on Goliath. However, as the tension between the Parties grow and with the
possibility that a favorable Final Arbitral Award (towards the Philippines) may end up as an empty
judgment, winning this case feels more like a bitter pill to swallow, than a shining moment worthy of
envy.

"The Nine Ironies of the South China Sea Mess." The Diplomat. 17 September 2015. Accessed 1
81

May 2016. http://thediplomat.com/2015/09/the-nine-ironies-of-the-south-china-sea-mess/.

32
VI. References
Laws
a. Philippine Republic Act No. 3046, 17 June 1961. Accessed on 30 April 2016.
http://www.lawphil.net/statutes/repacts/ra1961/ra_3046_1961.html.
b. Law of the People’s Republic of China on the Territorial Sea and Contiguous Zone
of 1992, 25 February 1992. Accessed on 30 April 2016.
http://www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/CHN_1992
_Law.pdf.
c. Philippine Republic Act No. 9522 or the 2009 Baselines Law, 10 March 2009.
Accessed on 30 April 2016.
http://www.lawphil.net/statutes/repacts/ra2009/ra_9522_2009.html.

Official Documents
d. Declaration of the Government of the People’s Republic of China on the Territorial
Sea of 1958, 4 September 1958. Accessed on 30 April 2016.
http://www.chinausfocus.com/wp-content/uploads/2014/08/Annex.pdf.
e. 1982 United Nations Convention on the Law of the Seas, 10 December 1982,
Montego Bay. Accessed on 30 April 2016.
http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf
f. 2002 Declaration on the Conduct of Parties in the South China Sea, 4 November
2002, Adopted by the Foreign Ministers of ASEAN and the People’s Republic of
China at the 8th ASEAN Summit in Phnom Penh, Cambodia. Accessed on 30 April
2016.
http://cil.nus.edu.sg/rp/pdf/2002%20Declaration%20on%20the%20Conduct%20of
%20Parties%20in%20the%20South%20China%20Sea-pdf.pdf.
g. Memorial of the Republic of the Philippines. In the Matter of an Arbitration before
an Arbitral Tribunal Constituted Under Annex VII to the 1982 United Nations
Convention of the Law of the Seas between the Republic of the Philippines and
the People’s Republic of China (Permanent Court of Arbitration 30 March 2014).

33
h. 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, 7 December 2014. Accessed on 30 April 2016.
http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1217147.shtml.
i. PCA Case No. 2013-09. In the Matter of an Arbitration before an Arbitral Tribunal
Constituted Under Annex II to the 1982 United Nations Convention of the Law of
the Law between the Republic of the Philippines and the People’s Republic of
China – Award of Jurisdiction and Admissibility, 29 October 2015. Accessed 30
April 2016. http://www.pcacases.com/web/sendAttach/1506.

Books
j. Bateman, Sam, and Ralf Emmers, eds. Security and International Politics in the
South China Sea - Towards a Cooperative Management Regime. New York:
Routledge, 2009.
k. Hu, Nien-Tsu Alfred, and Ted L. McDorman, eds. Maritime Issues in the South
China Sea - Troubled Waters or a Sea of Opportunity. New York: Routledge,
2013.

Articles
l. "A Legal Analysis of the Philippine-China Arbitration Ruling." The Diplomat.
November 2, 2015. Accessed 9 April 2016. http://thediplomat.com/2015/11/a-
legal-analysis-of-the-philippine-china-arbitration-ruling/.
m. "Arbitration 101: Philippines v. China | Asia Maritime Transparency Initiative." Asia
Maritime Transparency Initiative. 21 January 2015. Accessed 9 April 2016.
http://amti.csis.org/arbitration-101-philippines-v-china/.
n. "Flexible Response to Deter in the South China Sea | Asia Maritime Transparency
Initiative." Asia Maritime Transparency Initiative. 7 April 2016. 9 April 2016.
http://amti.csis.org/flexible-response-deter-south-china-sea/.
o. "The Nine Ironies of the South China Sea Mess." The Diplomat. 17 September
2015. Accessed 1 May 2016. http://thediplomat.com/2015/09/the-nine-ironies-of-
the-south-china-sea-mess/.

34
p. "What the Philippines–China Arbitration Ruling Means for the South China Sea."
East Asia Forum. 16 November 2015. Accessed 30 April 2016.
http://www.eastasiaforum.org/2015/11/16/what-the-philippines-china-arbitration-
ruling-means-for-the-south-china-sea/.
q. "Will Others Respect Precedent Set in the Philippines' Case? | Asia Maritime
Transparency Initiative." Asia Maritime Transparency Initiative. 24 March 2016.
Accessed 9 April 2016. http://amti.csis.org/will-others-respect-precedent-set-
philippines-case/.
r. "South China Sea Arbitration: What May Follow." The Straits Times. 22 January
2016. Accessed 9 April 2016. http://www.straitstimes.com/opinion/south-china-
sea-arbitration-what-may-follow.
s. Tupaz, Edsel. "China's Territorial Claim at Risk in the South China Sea." The
Huffington Post. 27 May 2015. Accessed 1 May 2016.
http://www.huffingtonpost.com/edsel-tupaz/chinas-territorial-claim-
_b_7441514.html.

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