PHILIPPINES and CHINA:

HISTORY versus LAW

According to a CNN Philippines report, our country has been praised by nations around
the world, because it is the first country to have dared (under Art. 287 and Annex VII of
UNCLOS1) to take China to the court. China has refused to engage the legal proceedings,
and claimed that they have inherent and indisputable sovereignty over almost the entire
South China using the principle of nine-dash line. Chinas State Department explained that
the nine-dash line was a valuable tying together of multiple legal strands of analyses in the
area of customary and treaty-based maritime law. It tests three possible interpretations of the
dashed-line claim:2
1. that the dashes represent a title to the islands and island groups that it encloses;
2. that the dashes represent a national maritime boundary; and
3. that the dashes represent a historic rights-based claim line to waters that are
exclusive to China.
However, the US State Department was not persuade on Chinas contention and said
that 9-dash line failed to clarify their claim over the South China Sea consistent to the
international law3 and has not barred the United Nations Convention on the Law of Sea for
the resumption of Philippine arbitration efforts, which was started on early 2013.4
On their own study5, which was published on December 9, 2014, they said that Law of
the Sea does not permit maritime entitlements to be overridden by another states maritime
claims that are based on history, To the contrary, a major purpose and accomplishment of
the Convention is to bring clarity and uniformity to the maritime zones to which coastal States
are entitled.
Moreover, Dashes 2, 3 and 8 that appear on Chinas 2009 map are not only relatively
close to the mainland shores of other states, but all or part of them are also beyond 200
nautical miles from any Chinese-claimed land feature.

http://www.un.org/Depts/los/convention_agreements/texts/unclos/a
nnex7.htm
2
See more at: http://www.chinausfocus.com/peace-security/thenine-dash-line-and-its-basis-in-internationallaw/#sthash.ZPzdAus8.dpuf
3
http://www.rappler.com/nation/77456-us-study-nine-dash-line
4
http://cnnphilippines.com/news/2015/07/09/moment-of-truthphilippines-vs-china-the-hague-richard-heydarian.html
5
United States Department of State Bureau of Oceans and
International Environmental and Scientific Affairs : Limits in the
Seas p.22

HOW EVERYTHING STARTED?

The territorial and maritime issues related on South China Sea (or West Philippine
Sea) were already existing even in early 1930s. The first official publication of Chinas NineDashed Line claim happened when, in 2009, submissions were made (one by Vietnam and
Malaysia jointly, and another by Vietnam alone)6 for areas of the continental shelf beyond 200
nautical miles in the South China Sea in accordance with UNCLOS, which was followed by a
sharp exchange of diplomatic notes. The tussle was thereafter followed by a string of
increasingly risky confrontations at sea.
The action of Philippine government against China was started on the incident
happened on early 2011 after was reported that Chinese ships had used water cannon
against Philippine fishing boats and two Chinese patrol boats (China Maritime Surveillance)
6

Joint Submission by Malaysia and Socialist Republic of Viet Nam

( May 6, 2009) on Commission on Limits of the Continental Shelf

harassed a seismic survey vessel operating in Philippine-claimed waters, Reed Bank, lies
west of Palawan Island and within the Philippines-declared exclusive economic zone (EEZ).
The most serious incident was happened in March when the Chinas surveillance ships
prevent the Philippine Navy7 from re-supplying and replacing personnel on its outpost on
Second Thomas Shoal. The incident underscored Chinas continued willingness to apply
limited coercion in disputes with Southeast Asian countries over maritime resources such
energy resources and fisheries8. Soon after, China lodged a diplomatic protest against the
Philippines public auction of petroleum concession blocks which included two areas between
Reed Bank and the Philippine island of Palawan. The Philippines subsequently lodged its
own diplomatic protests against Chinas fishing and military activities in Reed Bank and
nearby areas. Relations increasingly became strained as Chinas press openly warned of
military action, spurring an official response from the Philippines. The exchange of
protests continued well into the first quarter of 2012. Tensions between the two countries
reached a head in April that year with a month-long confrontation between Philippine and
Chinese vessels at Scarborough Shoal, which ended when Philippine ships left the shoal
upon a reported agreement for mutual withdrawal in June 2012. Shortly after, however,
Chinese vessels returned and have since been in control of the shoal.

February 19, 2013 the China rejected the said Notification and Statement of Claim and
returned it to the Philippines; however the case was not disbarred as provided on Article 9 of
UNCLOS, Annex VII.10
July 11, 2013 the five-member Arbitral Tribunal11 met at the Peace Palace in The Hague.
August 1, 2013 the China reiterated their rejection of the proceedings on Note of Tribunal.
August 27, 2013 - the Tribunal thereafter issued its first Procedural Order designated the
Permanent Court of Arbitration (PCA) to act as registry of the proceedings, and adopted the
Tribunals Rules of Procedure and initial timetable. The Tribunal is actually a separate entity
and independent of either the International Tribunal on the Law of the Sea or the PCA; by
being the registry, the PCA primarily hosts the tribunal and provides its administrative support.

January 23. 2013 - the Philippine announced that it initiated an arbitration case against
China by issuing a Notification and Statement of Claim 9 in accordance with the dispute
settlement provisions of UNCLOS, particularly under Art. 287 and Annex VII. Both the
Philippines and China are signatories to UNCLOS, having ratified it
in 1984 and 2006 respectively.

Second Thomas Shoal Tensions Intensify

(http://thediplomat.com/2014/03/second-thomas-shoaltensions-intensify/)

China and the Philippines: Implications of the Reed Bank

Incident (http://www.jamestown.org/single/?
no_cache=1&tx_ttnews%5Btt_news
%5D=37902#.VkyiLnYrLIV)

10

Article 9: Default of appearance - If one of the parties to the

dispute does not appear before the arbitral tribunal or fails to
defend its case, the other party may request the tribunal to
continue the proceedings and to make its award. Absence of a
party or failure of a party to defend its case shall not constitute a
bar to the proceedings. Before making its award, the arbitral
tribunal must satisfy itself not only that it has jurisdiction over the
dispute but also that the claim is well founded in fact and law.

http://www.gov.ph/2013/01/22/dfa-notification-and-statementclaim-on-west-philippine-sea-january-22-2013/
See more on http://amti.csis.org/arbitration-101-philippines-vchina/

11

As provided in Article 3 of UNCLOS, Annex VII (a) xxxx , the

arbitral tribunal shall consist of five members.

March 30, 2014 - The Philippines submits its Memorial12 to the Arbitral Tribunal. The ten
volume Memorial contains the Philippines legal analysis and evidence for the case, as well
as argues that the Arbitral Tribunal indeed has jurisdiction over the case.
April 2014 the signing of US Enhanced Defense Cooperation Agreement (EDCA) that
supplemented the existing arrangement with the United States for mutual logistics support
and visiting forces. It is intended to assist the Philippines in modernizing its armed forces and
developing its capabilities, particularly in the areas of maritime security and maritime domain
awareness.
May 2014 The Philippines protested against the release of surveillance photographs of land
reclamation taking place on a massive scale and at rapid pace on Johnson South Reef
(Mabini Reef)13 and similar activities have been reported on Cuarteron Reef, McKennan Reef,
Gaven Reef and Cross Reef. Despite of repeated protests, the reclamation activities
continues.14

December 5, 2014 The United States declared on their official report 15 that nine-dash line
claim could only be intentionally acceptable as a claim to territorial sovereignty over islands
inside the line but waters beyond those islands will be under their claim if it was in
accordance with UNCLOS. The State Department paper scrutinized Chinas ambiguity of the
nature of its claim and denied claims using historic title or claim.
December 7, 201416 China publicly released a Position Paper 17 as Counter-Argument
stating their objections against jurisdiction of the arbitral tribunal and asserted that the case
was essentially founded on the issue of sovereignty over islands and other maritime issues in
the South China Sea and it could not be decided on the Philippine claims without undertaking
maritime delimitations. They contended that the case falls outside tribunals jurisdiction since
its within the optional exceptions to the jurisdiction of binding dispute settlement
mechanism that China invoked in 2006 Declaration 18 in accordance with the terms of Article
298 of UNCLOS. China also stated that Philippines was in bad faith for abusing its right under
15

12

The Memorial presents the Philippines case on the jurisdiction

of the Arbitral Tribunal and the merits of its claims. It consists of
ten volumes. Volume I, which is 270 pages in length, contains the
Philippines analysis of the applicable law and the relevant
evidence, and demonstrates that the Arbitral Tribunal has
jurisdiction over all of the claims made by the Philippines' in its
Statement of Claim, and that every claim is meritorious. It sets out
the specific relief sought by the Philippines in regard to each of its
claims, and shows why it is entitled to such relief.
Volumes ll through X contain the documentary evidence and maps
that support the
Philippines claims, all of which are cited in Volume I. Volumes ll
through X consist of more than 3,700 pages, including more than
40 maps, for a total submission of nearly 4,000 pages. See on
https://www.un.int/philippines/sites/www.un.int/files/Philippines/pre
ss_statement_of_sfa_albert_del_rosario_submission_of_ph_memoria
l_to_the_arbitral_tribunal.pdf
13
See The West Philippine Sea Arbitration (
http://www.dfa.gov.ph/index.php/2013-06-27-21-50-36/dfareleases/2871-china-s-reclamation-on-mabini-reef) for actual
photos.

United States Department of State Bureau of Oceans and

International Environmental and Scientific Affairs : Limits in the
Seas
16

See more on http://amti.csis.org/arbitration-101-philippines-vchina/

17

18

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
(http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1217147.s
html)
2006 Ocean and Law of the Sea Declaration:

CHINA - In accordance with the decision of the Standing Committee

of the Eighth National People's Congress of the People's Republic of
China at its nineteenth session, the President of the People's
Republic of China has hereby ratified the United Nations
Convention on the Law of the Sea of 10 December 1982 and at the
same time made the following statement:

14

Philippines Protests
(http://www.scmp.com/news/asia/article/1532473/philippines-filesfourth-protest-over-china-reef-reclamation-disputed)

1. In accordance with the provisions of the United Nations

Convention on the Law of the Sea, the People's Republic of China
shall enjoy sovereign rights and jurisdiction over an exclusive
economic zone of 200 nautical miles and the continental shelf.

UNCLOS due to unilaterally taking arbitration to China, yet, expressing that they were not
participating in the proceedings.
December 11, 2014 - Vietnam quietly submitted a confidential statement to the Tribunal
regarding the case. Vietnam stated that it requested the Tribunal to pay due regard to the
legal rights and interests of Vietnam 19, but recognized the Tribunals jurisdiction over the case
and supported the Philippines arguments against the legality of Chinas nine-dash line claim.
December 17, 2014 - The Tribunal issued another Procedural Order20 and recorded that
China did not submit a Counter-Memorial, and reiterated its decision to neither accept nor

participate in the arbitration. The Tribunal acknowledged that its members had been furnished
with copies of Chinas public position paper while noting that it also expressly stated that the
position paper should not be regarded as acceptance or participation in the proceedings.
In accordance with its Rules of Procedure, the Tribunal gave the Philippines until March 15,
2015 to submit a supplemental submission on the Tribunals jurisdiction and the merits of the
case, in particular to address the points raised by Chinas position paper. After the
submission, China will have a similar period of 90 days within which to file a response.
January 29-30, 201521 - Viet Nams Deputy Prime Minister and Minister for Foreign Affairs
Pham Binh Minh and Philippines Secretary of Foreign Affairs Albert F. del Rosario expressed

2. The People's Republic of China will effect, through consultations,

the delimitation of the boundary of the maritime jurisdiction with
the States with coasts opposite or adjacent to China respectively
on the basis of international law and in accordance with the
principle of equitability.

stand on the islands.

3. The People's Republic of China reaffirms its sovereignty over all

its archipelagos and islands as listed in article 2 of the Law of the
People's Republic of China on the territorial sea and the contiguous
zone, which was promulgated on 25 February 1992.
4. The People's Republic of China reaffirms that the provisions of
the United Nations Convention on the Law of the Sea concerning
innocent passage through the territorial sea shall not prejudice the
right of a coastal State to request, in accordance with its laws and
regulations, a foreign State to obtain advance approval from or
give prior notification to the coastal State for the passage of its
warships through the territorial sea of the coastal State.
Declaration made after ratification (25 August 2006)

First, it recognised the court's jurisdiction over the case brought by

the Philippines, directly contradicting China's position that the
court had no such authority.
Second, it asked the court to give "due regard" to its legal rights
and interests in the Spratlys, the Paracels and in its exclusive
economic zone and continental shelf when deciding on the merits
of the Philippine case.
Finally, it rejected the Chinese nine-dash line demarcation - the
basis of China's claims to ownership over much of the South China
Sea - saying that it was "without legal basis".
See on (http://www.scmp.com/news/china/article/1661364/chinarejects-vietnam-claims-arbitration-submission-over-south-chinasea)

Declaration under article 298:

The Government of the People's Republic of China does not accept
any of the procedures provided for in Section 2 of Part XV of the
Convention with respect to all the categories of disputes referred to
in paragraph 1 (a) (b) and (c) of Article 298 of the Convention.

20

PRESS RELEASE: Arbitration between the Republic of the

Philippines and the Peoples Republic of China (http://www.pcacpa.org/PH-CN_20141217_Press_Release_No_3%20(ENG)dac6.pdf?
fil_id=2846)
21

19

Vietnam sent a statement to The Hague's Permanent Court of

Arbitration, making three main claims in opposition to China's

Philippines- Viet Nam Joint Commission for Strategic Partnership

( http://www.gov.ph/2015/01/30/1st-meeting-of-philippines-vietnam-joint-commission-on-concluding-a-strategic-partnership-heldin-manila/)

their serious concern over the ongoing massive reclamation activities that pose threats to the
peace and stability in the region as well as to the lives of many people across the various
coastal states in the South China Sea and co-chaired the meeting of the Philippines-Viet
Nam Joint Commission on concluding a Strategic Partnership.22
March 17, 2015 - The Philippines provides a supplemental submission23 to the Arbitral
Tribunal to answer the questions that had requested an expanded argument and additional
information. The questions were focused on the issue of the tribunals jurisdiction in the case
and the merits of the Philippines claims, including the Philippiness principled claim
challenging the lawfulness of Chinas so called nine-dashed line.24
April 22, 2015 - The Permanent Court of Arbitration issues a press release25 declaring that on
July 2015, the honorable Court will conduct a hearing to address the objections to jurisdiction
set out in Chinas Position Paper. The Arbitral Tribunal will also consider other matters
concerning its jurisdiction and the admissibility of the Philippines claims. Further, it states that
in the absence of formal participation in the proceedings, the Arbitral Tribunal would use
Chinas communications, to include the position paper from December 2014, as a plea with
regards to the Tribunals jurisdiction in the case.26
June 16, 2015 - China misses the tribunal deadline to submit any final statements in
response to the Philippines Supplemental Written Submission.27 However, Philippines was
22

China, the Philippines, Vietnam and International Arbitration on

South China Sea (http://www.globalresearch.ca/china-thephilippines-vietnam-and-international-arbitration-in-the-southchina-sea/5484992)
23
Supplemental Memorial at Permanent Court of Arbitration
(http://www.gov.ph/2015/03/17/dfa-statement-on-phssupplemental-submission-to-the-arbitral-tribunal/)
24

25

Philippines submit 3,000-page rebuttal vs China. See on

(http://www.rappler.com/nation/87100-philippinessupplemental-memorial-china)

The Arbitral Tribunal Sets Dates for Hearing on Jurisdiction and

Admissibility. See on http://www.pca-cpa.org/PH-CN%20%2020150422%20-%20Press%20Release%20No.
%204%20(ENG)7045.pdf?fil_id=2910.
26
http://amti.csis.org/ArbitrationTL/index.html
27
China Ignored the Sea Case PH ; See on
http://www.rappler.com/nation/96676-china-deadline-south-chinasea-philippines

alarmed as Chinas foreign ministry stated that, China is about to complete the land
reclamation operation at some of the Nansha Islands (Spratlys) where China has been
stationed28 and indicating that Beijing is close to setting up new outposts in the maritime
heart of Southeast Asia.29
July 7, 2015 - On the first day of hearings before the Arbitral Tribunal 30, Philippine Secretary
of Foreign Affairs Albert del Rosario outlines31 the Philippines general case against China,
and places strong emphasis on the fact that the Philippines recognizes that the Tribunal
cannot rule on issues of sovereignty, and is instead seeking an outcome that rejects Chinas
claim to the nine-dash line and historic rights. Sec. del Rosario goes on to underline how
past attempts at bilateral negotiations between China and the Philippines have failed to
resolve the maritime disputes, causing the Philippines to have no choice but to initiate the
arbitration case.
July 8, 2015 - The second day of hearings32 focuses on environmental and fishing issues in
the South China Sea. During his statements before the tribunal, Secretary of Foreign Affairs
Albert del Rosario says "China has irreversibly damaged the regional marine environment, in
breach of UNCLOS, by its destruction of coral reefs in the South China Sea, including areas
within the Philippines EEZ, by its destructive and hazardous fishing practices, and by its
harvesting of endangered species.
July 9, 2015 - In the morning hearing, the Philippines legal team33 continues to argue that the
Arbitral Tribunal has jurisdiction over the case. In the afternoon hearing, the Philippines
environmental and fishing claims against China are argued and Professor Philippe Sands
brings the first round of arguments to an end by summarizing what the Philippines has argued
thus far.

28

http://cnnphilippines.com/world/2015/06/17/Beijing-on-SouthChina-Sea-reclamation.html
29
http://www.interaksyon.com/article/112534/video--china-saysabout-to-finish-some-land-reclamation-in-south-china-sea
30
http://cnnphilippines.com/news/2015/07/08/day-1-philippinearguments-the-hague-arbitral-tribunal.html
31
http://www.rappler.com/nation/98769-philippines-china-hagueopening-statement-full-text
32
http://www.philstar.com/headlines/2015/07/09/1475007/day-2hague-philippines-presents-environmental-fishing-claims-vs-china
33
http://www.gov.ph/2015/07/09/bulletin-3-arbitral-tribunal-thehague/

July 10, 2015 - The Arbitral Tribunal34 meets to deliberate on what the Philippines has
presented so far in the first round of arguments. It is announced that a second round of oral
arguments35 will take place on July 13.
July 11, 2015 Secretary Leila de Lima, acting on a suggestion by Supreme Court Associate
Justice Antonio Carpio, states that if the Arbitral Tribunal decides that it has jurisdiction over
the case36, the Philippine government is considering seeking provisional measures to ensure
that China ceases its reclamation activities. These are provided for in UNCLOS, which states
that the tribunal may prescribe any provisional measures which it considers appropriate
under the circumstances to preserve the respective rights of the parties to the dispute or to
prevent serious harm to the marine environment, pending the final decision.
July 13, 2015 - The hearing on jurisdiction and admissibility37 of the Philippines claims
against China concludes. The hearing had been extended to a second round of arguments in
order to answer final questions from the tribunal. The Arbitral Tribunal gives the Philippines
until July 23, 2015 to submit expanded answers to its questions. The tribunal said it would
issue a ruling on preliminary jurisdiction as soon as possible and expects to do so before the
end of the year. Paul Reichler, who heads up the Philippines legal team, was more specific,
saying he expects a decision within 90 days.38
October 29, 2015 The first decision in The Republic of the Philippines vs. The Peoples
Republic of China was awarded. The Permanent Court of Arbitration noted that the decision
was unanimous and concerns only whether the Tribunal has jurisdiction to consider the
Philippines claims and whether such claims are admissible. The court ruled that the case
was properly constituted under the United Nations Convention on the Law of the Sea and
that the Philippines was within its rights in filing the case, on the other hand, has rejected
argument in Chinas position paper. 39 The case will allow moving forward for more oral
arguments. A final decision on case is then expected by June 2016.40
34

http://www.gov.ph/2015/07/10/bulletin-4-arbitral-tribunal-thehague/
35
http://www.rappler.com/nation/98903-hague-arbitral-tribunalphilippines-china
36
http://cnnphilippines.com/news/2015/07/10/hague-hearingsarbitral-tribunal-decision-second-round-arguments.html
37
http://www.gov.ph/2015/07/14/bulletin-6-arbitral-tribunal-thehague/
38
http://thediplomat.com/2015/08/the-philippines-chinaarbitration-what-next/
39
http://thediplomat.com/2015/10/philippines-v-china-court-rulesfavorably-on-jurisdiction-case-will-proceed/
40

http://www.gmanetwork.com/news/story/521230/news/nation/phlsees-un-court-ruling-on-case-vs-china-in-3-months