PARTIES

The Republic of the Philippines People's Republic of China

DISPUTES

1. Legal basis for maritime rights and entitlements in the South

China Sea
2. Status of certain geographic features in the South China Sea
3. Lawfulness of certain actions take by China in the South China
Sea
THE SOUTH CHINA SEA
• The South China Sea is a semi-
enclosed sea in the western
Pacific Ocean, spanning an area
of almost 3.5 million square
kilometres,
• The South China Sea lies to the
south of China; to the west of
the Philippines; to the east of
Viet Nam; and to the north of
Malaysia, Brunei, Singapore, and
Indonesia.
STRATEGIC FEATURES
• The South China Sea is a crucial shipping lane, a rich
fishing ground, home to a highly biodiverse coral reef
ecosystem, and believed to hold substantial oil and gas
resources
SPRATLY ISLANDS

The southern portion of the South China Sea is also the location
of the Spratly Islands, a constellation of small islands and coral
reefs, existing just above or below water, that comprise the peaks
of undersea mountains rising from the deep ocean floor. Long
known principally as a hazard to navigation and identified on nautical
charts as the “dangerous ground”, the Spratly Islands are the site of
longstanding territorial disputes among some of the littoral States of
the South China Sea.
The Status of
Features as
Rocks/Islands
SUBMISSIONS NO.3, 5, & 7

Submitted by: Avecilla, Ma.

Concepcion
Tejada-Catbagan, Danica Karla
PHILIPPINES’ SUBMISSIONS 3, 5 & 7

3. Scarborough Shoal generates no entitlement to an exclusive

economic zone or continental shelf
5. Mischief Reef and Second Thomas Shoal are part of the EEZ and
Continental Shelf of the Philippines
7. Johnson Reef, Courteron Reef and Fiery Reef generate no
entitlement to an EEZ or Continental Shelf
ART 121
REGIME OF ISLANDS
1. An island is a naturally formed area of land, surrounded by water,
which is above water at high tide.
2. Except as provided for in par3, the territorial sea, the contiguous
zone, the EEZ and the continental shelf of an Island are determined
in accordance with the provisions of this Convention applicable to
other land territory.
3. Rocks which cannot sustain human habitation or economic life of
their own shall have no EEZ or continental shelf.
FACTUAL BACKGROUND
Philippines China
Scarborough Shoal Panatag Shoal or Huangyan Dao
Bajo de Masinloc

• 116.2 nautical miles from the archipelagic baseline of Luzon

• 448.2 nm from China’s baseline point 29
• ( Jiapengliedao) near Hong Kong
 Philippines China
Cuarteron Reef Calderon Reef Huayang Jiao

-Easternmost of four maritime features known

collectively as the London Reefs that are
located on the western edge of the Spratly
Islands
-245.3 nm from Palawan
- 585.3 nm from Dongzhou (2) adjacent island
of Hainan
 Philippines China
Fiery Cross Reef Kagitingan Reef Yongshu Jiao

-It is a coral reef located to the north of

Cuarteron Reef and along the western edge of
the Spratly Islands, adjacent to the main
shipping routes through the South China Sea
- 254.2 nm from Palawan
-547.7 nm from Dongzhou(2) adjacent to the
Island of Hainan
 Philippines China
Johnson Reef Mabini Reeef Chigua Jiao

-Part of the larger reef formation in the center

of the Spratly Islands known as Union Bank
- 184.7 nm from Palawan
- 570.8 nm from Dongzhou(2) adjacent to
Hainan
.
• Gavern Reef (North) and Mc Kennan Reef are a high-tide feature

• Mischief Reef and Second Thomas Shoal are located within 200
nautical miles of the Philippines
FEATURES IN THE SPRATLY ISLANDS

Philippines China
Itu Aba Ligaw Taiping Dao*
Thitu Pagasa* Zhongye Dao
West York Island Likas* Xiyue Dao
Spratly Island Lagos Nanwei Dao
North-East Cay Parola* Baizi Dao
South-West Cay Pugad Nanzi Dao
PARTIES’ POSITION
PHILIPPINES’ POSITION CHINA’S POSITION

• 1.Status of the maritime features and • Philippines Submissions No 3, 5 & 7 – “

sources of maritime entitlements in the
South China Sea.
putting the cart before the horse”.
“…It is meaning less to indulge in
the empty talk on the legal status and
entitlements of maritime features without
making a preliminary decision on who is
the “coastal state” and in separation from
State sovereignty. The legal status and
entitlements of maritime features do not
constitute actual disputes in themselves,
and there is no precedent in international
law deciding otherwise.”
TRIBUNAL
• The Tribunal found that it had jurisdiction to consider Submission no 3
and 7 since the dispute did not seek for sovereignty over the features
nor did it concern delimitation of those zones in an area where the
entitlements of parties overlap.
• The Tribunal reserved a decision on its jurisdiction with respect to the
Philippines Submission No. 5.
SCARBOROUGH SHOAL
PHILIPPINES’ POSITION
• Scarborough Shoal and all of the high-tide
features in the Spratly Islands are properly
characterized as “ ROCKS” under Article
121(3) of the Convention.
CHINA’S POSITION
• China has sovereignty over Scarborough
Shoal and the Spratlys.
• In order to determine China’s Maritime
entitlements based on the Nansha Islands
(Spratly’ Islands) under the Convention, all
maritime features comprising Nansha
Islands ust be taken into account.
INTERPRETATION OF ARTICLE 121(3)

PHILIPPINES’ POSITION C H I N A ’ S S TAT E M E N T S O N T H E

M E A N I N G O F A RT 1 2 1 ( 3 )

1. origins and negotiating history • 1. Protesting Japan’s claim of an extended shelf

2.The meaning of “rock” from Oki-no-Tori-shima (an atoll)

3. size alone no determinative of the status of a a. Note Verbale to the UN Secretary

feature as a rock General

4. The term “ cannot” – “.. The so called Oki-no-Tori Shima Island

is in fact a rock as referred to in Art
5. The words “sustain human habitation”
121(3) of the Convetntion. Therefore, the
Chinese Government wished to draw
…attention…to the inconformity with the
Convention with regard to the inclusion of
the rock of Oki-no-Tori in Japan’s
INTERPRETATION OF ARTICLE 121(3)
PHILIPPINES’ POSITION
5. the use of “on their own”
6. “economic life”
7. grammatical context of the word “or” in the
Article 121(3)
8. military presence on a rock
9. interpretation of Art121(3) inconsistent, but
States generally accept that small uninhabited,
barren outcrops should not generate full
maritime zones.
C H I N A ’ S S TAT E M E N T S O N T H E
M E A N I N G O F A RT 1 2 1 ( 3 )
B. Explanatory Note to its proposal on the 19
meeting of State Parties to the Convention
“ Coastal States should comply fully
with the Convention, taking into account the
overall interests of the international
community, and should not interpret the
Convention in a biased way, nor put their
interests above the overall interests of the
international community, nor encroach upon
the Area as the common heritage of
mankind.”
INTERPRETATION OF ARTICLE 121(3)
PHILIPPINES’ POSITION
10. Seek useful guidance from the approach
of international courts and tribunals in the
delimitation context
11. concerns on finding of fully entitled
islands or rocks
12. The Test
C H I N A ’ S S TAT E M E N T S O N T H E
M E A N I N G O F A RT 1 2 1 ( 3 )
C. 15th Session of the International Seabed
Authority
“urged member States to be guided by the
letter and spirit of the Convention to avoid any
encroachment on the common heritage of
mankind.”
D. Note Verbale to the Un Secretary general - consistently maintained that, the rock Oki-no-Toro, On
its natural conditions, obviously cannot sustain human habitation or economic life of its won and therefore
under Art 121(3), it shal have no EEZ or Continental Shelf
Tribunal’s
Consideration
INTERPRETATION OF ARTICLE 121 OF
THE CONVENTION
FROM THE TEXT OF Article 121 (3)

• The term “rock’ does not require that a feature be composed of rock in the
geologic sense in order to fall within the scope of the provision.

• The use of the word “cannot “ indicates a concept of capacity. It is concerned

with whether, objectively, the feature is apt, able to, or lends itself to human
habitation or economic life.

• The term “sustain” indicates both time and qualitative elements. Habitation
and economic life must be able to extend over a certain duration and occur
to an adequate standard.
• The term ‘human habitation” implies a non-transient presence of
persons who have chosen to stay and reside on the feature in a settled
manner.
• The logical interpretation of the use of the term “or” indicates that a
feature that is able to sustain either human habitation or an economic
life of its own will be entitled to an exclusive economic zone and
continental shelf.
• The term “economic life of their own” refers that a feature itself must
have the ability to support an independent economic life without relying
predominantly on the infusion of outside resources or serving purely as
an object for extractive activities without involvement of local
population.
• FROM THE CONTEXT OF Article 121 (3) and THE OBJECT AND
PURPOSE OF THE CONVENTION

The context of Islands, Rocks and Low-tide elevations

• The Tribunal considers that a rock cannot be transformed into a fully

entitled island through land reclamation.

• A low-tide elevation or area of seabed cannot be legally transformed

into an island through human efforts.

• The status of a feature must be assessed on the basis of its natural

condition.
• If States were allowed by technological advancements a feature’s capacity to
sustain, then every high-tide feature could be converted into an island
generating a 200-mile entitlement.

The link between Article 121 (3) and the purpose of the exclusive economic
zone.

• The Tribunal considers that human habitation with which the drafters of
Article 121 (3) were concerned was the habitation by a portion of the
population for whose benefit the exclusive economic zone was being
introduced.
THE HISTORY OF ARTICLE 121 (3)
• Article 121 (3) is a provision of limitation.

• The definitions in Article 121 (3) were not discussed in isolation, but
frequently in the context of other aspects of the Convention

• The drafters accepted that there are diverse high tide features; vast and tiny;
barren and lush; rocky and sandy; isolated and proximate; densely and sparsely
populated or not populated at all. The Tribunal consider that the travaux make
clear that size cannot be dispositive of a feature’s status as a fully entitled
island or rock and is not, on its own a relevant factor.
APPLICATION OF ARTICLE 121 (3)

• In the Tribunal’s view Scarborough Shoal, Johnson Reef, Cuarteron Reef, Fiery
Cross Reef, Mc Kennan Reef are “rock” for purpose of Article 121 (3).

• With regard to the Spartly Islands as a whole, the Tribunal agreed with
China’s statement that the criteria of human habitation and economic life may
sustain itself through the use of a network of closely related maritime
features. However the Tribunal cannot agree with China’s statement that the
Spratly Islands should be enclosed within a system of archipelagic or straight
baselines. The use of archipelagic baselines is controlled by the Convention.
APPLICATION OF ARTICLE 121 TO OTHER
HIGH-TIDE FEATURE IN THE SPARTLY
ISLAND
Factual findings concerning high-tide features in the Spratly islands with regards
to the following:
a. The Presence of Potable water
b.Vegetation and Biology
c. Soil and Agricultural Potential
d. Presence of Fishermen
e.Commercial Operation
• The Tribunal concludes that Its Aba, Tithu, West York, Spartly Island, South-
West Cay, and North East Cay are not capable of sustaining human habitation
within the meaning of Article 121 (3). Less significant hi-tide features in
Spartly Island reaches the same conclusion.

• In the Tribunal’s view, all economic activity in the Spartly Islands has been
essentially extractive in nature, therefore without the presence of a stable
local community, necessarily falls short of constituting the economic life of
the feature.
CONCLUSION

• The Tribunal finds with respect to the Philippines’ Submission No. 3 and
Submission No. 7 that Scarborough Shoal, Johnson Reef, Cuarteron Reef and
Fiery Cross Reef contain, within the meaning of Article 21 (1) ,naturally formed
areas of land, surrounded by water, which are above water at high tide. But
under Article 121 (3) of the Convention , it is rock that cannot sustain human
habitation or economic life their own and shall have no EEZ or continental
shelf.
• The Tribunal concludes that Mischief Reef and Second Thomas Shoal are both
low-tide elevations that generate no maritime zones on its own. It also
concludes that none of the high-tide features in the Spratly Islands are within
the meaning of those terms in Article 121 (3) of the Convention and
accordingly no possible entitlement of China to any maritime zone in the area
and no jurisdictional obstacle to the Tribunal’s consideration of the Philippines’s
Submission No. 5
• Philippines’ Submission No. 5, Tribunal concludes that both Mischief Reef and
Second Thomas Shoal are located within the 200 nautical miles of the
Philippines’ coast and located in an area that is not overlapped with features
claimed by China therefore form part of the EEZ and continental shelf of the
Philippines.