3/9/2019

PARTIES
People’s Republic of
PCA Case Nº 2013-19: China
Republic of the
Philippines
IN THE MATTER
OF THE SOUTH
CHINA SEA
ARBITRATION

Presentation Title
Subheading goes here

Basis for Arbitration

• 1982 United Nations Convention on the Law of

the Sea
• “constitution for the oceans”
• “settle all issues relating to the law of the sea”
• both the Philippines and China are parties to the
Convention

Limitation of the Convention Limitation of the Convention

• does not address the sovereignty of States over land • China’s 2006 reservation to exclude maritime
territory
boundary delimitation from its acceptance of
compulsory dispute settlement
• cannot make any ruling as to which State enjoys
sovereignty over any land territory in the South China
Sea

• cannot settle disputes concerning sovereignty over the

Spratly Islands or Scarborough Shoal

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China’s Position UNCLOS

• consistently rejected the Philippines’ recourse to • Article 9, Annex VII

arbitration – “[a]bsence of a party or failure of a party to defend
– non-participation in the arbitration is its lawful right its case shall not constitute a bar to the proceedings”
under the Convention
• Article 296(1) and Article 11, Annex VII
– China is bound by any award the Tribunal issues

4 Categories of Disputes

1. source of maritime rights and entitlements in

3. resolve a series of disputes between the Parties
the South China Sea
concerning the lawfulness of China’s actions in the
South China Sea
2. entitlements to maritime zones that would be
generated under the Convention by Scarborough
4. China has aggravated and extended the disputes
Shoal and certain maritime features in the Spratly
during the course of the arbitration
Islands

Dispute #1

• source of maritime rights and entitlements in

the South China Sea
– declaration that China’s claim to rights within the
‘nine-dash line’ marked on Chinese maps are
without lawful effect

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Philippines’ Contention
• dominium maris
• la terre domine la mer
– the land dominates the sea
• Philippines necessarily
exercises sovereignty and
jurisdiction over the waters
around or adjacent to each
relevant geological feature
in the KIG
– Article 121, UNCLOS
(regime of islands)

China’s Position Philippines’ Contention

• Chinese historic maps
dating back to 1136
• China’s sovereignty and related rights and – China’s territory
jurisdiction in the South China Sea are extending no further
south than Hainan
supported by abundant historical and legal
• 14th-16th century
evidence.
– Imperial Chinese
– claim to rights linked to nine-dash line is “formed
Government actively
over a long course of history”
prohibited maritime
trade by Chinese
subjects

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Philippines’ Contention ISSUE

• Chinese transliterations of their English names

– Lord Auckland Shoal - ‘Ao ke lan sha’
– Mischief Reef - ‘Mi-qi fu’
– Gaven Reef - ‘Ge wen’
Whether or not China’s claims to rights within the
nine-dash line are valid?
• absence of any Chinese historic rights in various historical
documents
– Chinese historical claims to the features of the South China Sea
did not, until 2009, “include a claim to the waters beyond their
territorial seas”

HELD

Nine-Dash Line • conditions the Convention may be modified by State

– evidence of use giving rise to historic rights (islands)
≠ historic rights (waters) beyond TS; historic usage
of the waters of the South China Sea ≠ rights to the
islands
– historical navigation and fishing, beyond the
territorial sea were merely the exercise of freedoms
already permitted by international law
practice:
1. assertion by a State of a right at variance with the
Convention
2. acquiescence therein by the other States Parties
3. passage of sufficient time to establish beyond doubt
the existence of both the right and a general
acquiescence

Dispute # 2

• In the current case: extent of the rights asserted within • entitlements to maritime zones that would be generated
the ‘nine-dash line’ only became clear with China’s under the Convention by Scarborough Shoal and
Notes Verbales of May 2009; objected to by other certain maritime features in the Spratly Islands
States

• China’s claims to historic rights, or other sovereign

rights or jurisdiction, maritime areas encompassed by
the ‘nine-dash line’ are contrary to the Convention and
without lawful effect

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Status of Features in the Status of Features in the

South China Sea South China Sea
• low-tide elevation • rocks
– high-tide features that “cannot sustain human habitation or
– a feature that is exposed at low tide but covered with water
economic life of their own”
at high tide (Article 13) – disqualified from generating an exclusive economic zone or
continental shelf (Article 121(3))

• islands • fully entitled islands

– naturally formed area of land, surrounded by water, above – same entitlements as other land territory (Article 121(2))
water at high tide
– entitlements to maritime zones: capacity to “sustain human • submerged features
habitation or economic life of [its] own” (Article 121(3)) – features that are fully submerged, even at low tide

Philippines’ Contentions Philippines’ Contentions

• Scarborough Shoal and all of the high-tide features in
the Spratly Islands are “rocks” under Article 121(3)
• Mischief Reef, Second Thomas Shoal are low-tide
elevations
• no entitlement to a TS, EEZ or CS
• not capable of appropriation by occupation or otherwise
• Low-tide elevations are not land territory (Article 13)
3 Categories of Low-Tide Elevations
1. low-tide elevation is within 12 miles of a high-tide feature
– sovereignty rests with the State which has sovereignty over the high-
tide feature
2. low-tide elevations lie wholly beyond 12 miles but within a
state’s EEZ or CS
– coastal state enjoys exclusive sovereign rights and jurisdiction

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Philippines’ Contentions China’s Positions

• China claims sovereignty over Scarborough Shoal

3. low-tide elevation is at an even greater distance,
beyond areas of national jurisdiction (part of the
deep seabed)
– no state can purport to exercise sovereignty or any
sovereign rights
– China’s 1992 Law on the Territorial Sea and the Contiguous Zone
• 12-nautical mile territorial sea
• Upon ratification of the UNCLOS in 1996
– China declared 200-nautical mile EEZ and CS from the Spratly Islands
• Spratly Island group as a whole generate full maritime
entitlements

China’s Positions

• Scarborough Shoal is not a sand bank but an

island

• Spratly Islands is fully entitled to TS, EEZ, CS

2012

2012
Second Thomas Subi Reef
Shoal/Ayungin Shoal 2018

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Fiery Cross Reef is a rock located in the 2018

Spratly Islands. China first took possession Gaven Reef
of the feature in 1988.
2017

ISSUE HELD: On Maritime Entitlements

Whether or not there are entitlements to the • Scarborough Shoal is a “rock”

Scarborough Shoal and certain maritime features – could not sustain human habitation in their naturally
in the Spratly Islands considering that they are formed state
rocks? – could not independently sustain an economic life of
its own
– no EEZ, CS
Whether or not Mischief Reef and Scarborough
Shoal are under the sovereignty of the Philippines?

• none of the high-tide features (Itu Aba, Thitu,

West York, Spratly Island, South-West Cay, and
North-East Cay) in the Spratly Islands is capable
of sustaining human habitation or an economic
life of their own
– No EEZ, CS

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West York Island is a rock located

in the Spratly Islands. The
Philippines first took possession
HELD: On Mischief Reef and
of the feature in 1974.
Second Thomas Shoal
• The Tribunal does not call itself to decide a
dispute concerning sea boundary delimitation

• Mischief Reef and Second Thomas Shoal are low-

tide elevations
– no legal basis for any entitlement by China to maritime
zones in the area
Itu Aba Island is a rock located in the
Spratly Islands. Taiwan took
permanent possession of the feature
in 1956.

• Mischief Reef and Second Thomas Shoal

– within 200 nautical miles of the Philippines’ coast
on the island of Palawan
– located in an area that is not overlapped by the
entitlements generated by any maritime feature
claimed by China
– between Philippines and China, Mischief Reef and
Second Thomas Shoal are part of the EEZ and CS
of Philippines

Concern 1: INTERFERENCE WITH THE PHILIPPINES’

Dispute #3 SOVEREIGN RIGHTS IN ITS EEZ AND
CONTINENTAL SHELF

• resolve a series of disputes between the Parties i. Interference with Rights to Non-Living Resources
concerning the lawfulness of China’s actions in the
- China’s objection to the
South China Sea
conversion of the
i. exercise of the Philippines’ rights under the Convention i.e. fishing, oil
exploration, navigation, construction of artificial islands and Philippines’ contract with
installations; Sterling Energy for
ii. failing to protect and preserve the marine environment i.e. harvesting exploration of oil and gas
of endangered species, use of harmful fishing methods that damage
the fragile coral reef ecosystem
deposits (Sterling Energy
iii. inflicting severe harm on the marine environment i.e. constructing award, Reed Bank)
artificial island, extensive land reclamation at seven reefs in Spratly
Islands.

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- “aggressive manoeuvres” by two CMS vessels towards the
MV Veritas Voyager on 2 March 2011
- China’s objection to Service Contract 58 in respect of the
West Calamian petroleum block and its efforts to dissuade
Nido from working in the area
- China’s prevention of fishing by Philippine vessels at Second
Thomas Shoal (2013)
China’s Position
• China considers that it has sovereign rights in
the areas in question.
China’s Position
• it does not consider the Philippines to have
rights in the area of Second Thomas Shoal and
Mischief Reef
• China has repeatedly demanded that the
Philippines withdraw its personnel from Second
Thomas Shoal
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ii. Interference with Rights to Non-Living
Resources
– China’s prevention of fishing by Philippine vessels at
Mischief Reef and Second Thomas Shoal since 1995
– 2012 moratorium on fishing in the South China Sea
north of 12°N latitude
– China’s revision of the Hainan Regulation
Concern 2: ALLEGED FAILURE TO PREVENT CHINESE
NATIONALS FROM EXPLOITING THE PHILIPPINES’
LIVING RESOURCE
• China has unlawfully failed to prevent its nationals and
vessels from exploiting the living resources in the
exclusive economic zone of the Philippines
– Since 3 May 2013, China has maintained a significant
presence of naval and CMS vessels near Second Thomas
Shoal
– presence of Chinese fishing vessels, escorted by Chinese
Government ships, at Mischief Reef, where China has
maintained a presence since 1995
Concern 3: CHINA’S ACTIONS IN RESPECT OF
TRADITIONAL FISHING AT SCARBOROUGH SHOAL
• China has unlawfully prevented Philippine fishermen
from pursuing their livelihoods by interfering with
traditional fishing activities at Scarborough Shoal (Bajo de
Masinloc)
– Traditional fishing by Philippine fishermen at Scarborough
Shoal
– China’s Intermittent prevention of fishing by Philippine
Vessels at Scarborough Shoal
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• Since April 2012, when the Chinese took control of

Scarborough Shoal, Filipinos find it difficult to enter the
shoal because the Chinese law enforcement vessels have
created a “no fishing zone” around it. Chinese patrol
vessels enforce this zone by threatening Filipino
fishermen who attempt to fish at Scarborough

Reuters video journalist Peter Blaza (C), with assistant Oscar Abunyawan (R), films a
Chinese fishing vessel docked on the mouth of Scarborough Shoal in the South China
Sea, April 6, 2017. Picture taken April 6, 2017.

Concern 4: ALLEGED FAILURE TO PROTECT AND

China’s Position PRESERVE THE MARINE ENVIRONMENT

• China claims sovereignty over Scarborough • China has violated its obligations under the Convention to
protect and preserve the marine environment at Scarborough
Shoal and asserts that its waters constitute a Shoal, Second Thomas Shoal, Cuarteron Reef, Fiery Cross
traditional fishing ground for Chinese fishermen Reef, Gaven Reef, Johnson Reef, Hughes Reef and Subi Reef

• China’s occupation of and construction activities on Mischief

Reef violate China’s duties to protect and preserve the marine
environment under the Convention

Concern 5: OCCUPATION AND CONSTRUCTION

ACTIVITIES ON MISCHIEF REEF
China’s Position

• January 1995 – fiberglass structures • “typhoon

• presence of “an estimated 1,000 uniformed men” shelters”
aboard eleven Chinese vessels anchored there and in • civilian in nature
the structures on the reef
• Philippines’ Aide Memoire to China • did “not pose
– violated “the spirit of the 1992 ASEAN Declaration on the threat to any
South China Sea” country”
– requested the immediate removal of Chinese vessels from
the reef

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Philippine’s Contention

• Panganiban [Mischief] Reef is a low-tide elevation

located in the exclusive economic zone of the
Philippines and on its continental shelf

• Articles 60 and 80 of UNCLOS - Philippines has

exclusive right to authorize the construction of artificial
islands, installations or other structures in the vicinity
of Panganiban Reef.

2012

Concern 6: OPERATION OF LAW ENFORCEMENT VESSELS

IN A DANGEROUS MANNER Philippines’ Contention
• Near-Collision of
Philippine Vessels BRP • Philippines requested China to instruct its ships to
Pampanga and BRP
Edsa II with Chinese
observe the Convention on the International
Vessel FLEC 310 Regulations for Preventing Collisions at Sea
(COLREGS).
• Near-Collision of
Philippine Vessel MCS
3008 with Several
Chinese Vessels upon • Philippines expressed its “grave concern over the
Approach to
Scarborough Shoal provocative and extremely dangerous maneuvers”
committed by Chinese vessels at Scarborough
Shoal.

China’s Position ISSUES

• China replied that it “does not accept the
contents” of the Philippines’ notes and asserted
that the conduct of its vessels was justified.
– invoked its sovereignty
Whether or not China’s actions concerning the
following are valid?
i. Alleged interference with the Philippine’s Sovereign
Rights in its EEZ and Continental Shelf

ii. Alleged failure to prevent Chinese nationals from

exploiting the Philippines’ living resources

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ISSUES
iii. China’s actions in respect of traditional fishing at
Scarborough Shoal
iv. Alleged failure to protect and preserve the marine
environment
v. Occupation and construction activities on Mischief Reef
vi. Operation of law enforcement vessels in a dangerous
manner
ii. Alleged failure to prevent Chinese nationals from
exploiting the Philippines’ living resources
• China has, through the operation of its marine surveillance
vessels in tolerating and failing to exercise due diligence to
prevent fishing by Chinese flagged vessels at Mischief Reef
and Second Thomas Shoal in May 2013, failed to exhibit due
regard for the Philippines’ sovereign rights with respect to
fisheries in its exclusive economic zone. Accordingly, China
has breached its obligations under Article 58(3) of the
Convention.
iv. Alleged failure to protect and preserve the marine
environment
• China has, through its toleration and protection of, and
failure to prevent Chinese fishing vessels engaging in harmful
harvesting activities of endangered species at Scarborough
Shoal, Second Thomas Shoal and other features in the Spratly
Islands, breached Articles 192 and 194(5) of the Convention
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HELD
i. Alleged interference with the Philippine’s Sovereign Rights in its EEZ
and Continental Shelf
• China has, through the operation of its marine surveillance vessels with
respect to M/V Veritas Voyager breached Article 77 with respect to the
Philippines’ sovereign rights over the non-living resources of its continental
shelf in the area of Reed Bank.
• China has, by promulgating its 2012 moratorium on fishing in the South
China Sea, without exception for areas of the South China Sea falling within
the EEZ of the Philippines and without limiting the moratorium to Chinese
flagged vessels, breached Article 56 of the Convention with respect to the
Philippines’ sovereign rights over the living resources of its EEZ.
iii. China’s actions in respect of traditional fishing at
Scarborough Shoal
• China has, through the operation of its official vessels
at Scarborough Shoal from May 2012 onwards,
unlawfully prevented Filipino fishermen from
engaging in traditional fishing at Scarborough
Shoal.
* this decision is entirely without prejudice to the question of sovereignty over
Scarborough Shoal
• China has, through its island-building activities at
Cuarteron Reef, Fiery Cross Reef, Gaven Reef (North),
Johnson Reef, Hughes Reef, Subi Reef and Mischief
Reef, breached Articles 192, 194(1), 194(5), 197, 123,
and 206 of the Convention
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v. Occupation and construction activities on
Mischief Reef
• China has, through its construction of installations and artificial
islands at Mischief Reef without the authorization of the
Philippines, breached Articles 60 and 80 of the Convention with
respect to the Philippines’ sovereign rights in its exclusive economic
zone and continental shelf.
• as a low-tide elevation, Mischief Reef is not capable of
appropriation.
Dispute #4
• China has aggravated and extended the disputes
during the course of the arbitration i.e.
restricting access to a detachment of Philippine
marines stationed at Second Thomas Shoal,
large-scale construction of artificial islands, land
reclamation at seven reefs in the Spratly Islands
• intensified its programme of building artificial
islands and installations at Mischief Reef,
Cuarteron Reef, Fiery Cross Reef, Gaven Reef
(North), Johnson Reef, Hughes Reef, and Subi
Reef.
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vi. Operation of law enforcement vessels in a
dangerous manner
• China has, by virtue of the conduct of Chinese law
enforcement vessels in the vicinity of Scarborough Shoal,
created serious risk of collision and danger to Philippine
vessels and personnel. The Tribunal finds China to have
violated Rules 2, 6, 7, 8, 15, and 16 of the COLREGS
and, as a consequence, to be in breach of Article 94 of
the Convention.
May 2013 - significant increase of Chinese Government vessels
at Second Thomas Shoal, including two Chinese Navy frigates
and five Civilian Maritime Law Enforcement Agency vessels on
a rotation basis
China’s Position
• BRP Sierra Madre was ‘illegally grounded’ on Second Thomas
Shoal
• Philippine authorities promised China that they would
immediately remove the stranded vessel but they have not
done so up to this day
• China “would not allow the continuous stranding of the
vessel.”
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China’s Position
• Philippines has violated the principle of good
faith in relation to the DOC
– The principle of good faith requires all States to
honestly interpret agreements they enter into with
others, not to misinterpret them in disregard of their
authentic meaning in order to obtain an unfair
advantage.
HELD
• Second Thomas Shoal is a low-tide elevation
– generates no entitlement to maritime zones of its own
• no high-tide features within 12 nautical miles of Second
Thomas Shoal
• no legal basis for any entitlement by China to maritime
zones in the area
• that China’s land reclamation and/or construction of artificial
islands, installations, and structures at Cuarteron Reef, Fiery
Cross Reef, Gaven Reef (North), Johnson Reef, Hughes Reef,
Subi Reef, and Mischief Reef do not constitute “military
activities”
• China’s intensified construction of artificial islands on seven
features in the Spratly Islands during the course of these
proceedings has unequivocally aggravated the disputes
between the Parties
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ISSUE
Whether or not the Tribunal has jurisdiction over
the stand-off between the Philippines marine
detachment on Second Thomas Shoal and Chinese
military and paramilitary vessels in the area?
Stand-off between the Philippines marine
detachment on Second Thomas Shoal and
Chinese military and paramilitary vessels in the
area
• the dispute concerning the stand-off between the Philippines’
marine detachment on Second Thomas Shoal and Chinese
military and paramilitary vessels involves “military activities”,
within the meaning of Article 298(1)(b) of the Convention
• Tribunal has no jurisdiction to consider the Philippines’
Submissions
Conclusion
• it is a fundamental principle of international law that
“bad faith is not presumed,”1497 and Article 11 of
Annex VII provides that the “award . . . shall be
complied with by the parties to the dispute.”
• both Parties are obliged to resolve their disputes
peacefully and to comply with the Convention and this
Award in good faith.
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