A Short Primer on the PH-China Arbitration

Prepared by: The Office of Representative Herminio Harry L. Roque Jr.

Former Professor of International Law and Constitutional Law, University of the Philippines,
College of Law
Former Director, Institute of International Legal Studies, UP Law Center
Vice-President for Southeast Asia and member, Executive Council, Asian Society of
International Law

Introduction
The purpose of this primer is to inform the reader of the nuances of the case that
is to be decided shortly in the arbitration between the Republic of the Philippines
and the Peoples Republic of China. By understanding the positions of China and
the Philippines respectively, one can predict the outcome of the case, and come
up with a plan of action for the Philippine government.
The Dispute: An Overview
Under international law, every sovereign state has the exclusive right to explore
and exploit the waters extending 200 nautical miles from its baselines otherwise
known as the Exclusive Economic Zone. The Philippine-China dispute stems from
Chinas alleged interference of the exclusive sovereign rights of the Philippines to
its maritime entitlements under the UN Convention on the Law of the Sea.
Over the past few years, China has prevented Filipino fishermen from fishing
around various locations or features within the West Philippine Sea. China has
also constructed artificial islands and implements in areas claimed by the
Philippines as part of its Continental Shelf and EEZ. The Philippines argues that all
these actions are inconsistent with the rules laid out by the United Nations
Convention on the Law of the Sea (UNCLOS), a treaty to which both States are
state parties.
The dispute revolves around features such as the Scarborough Shoal, the Spratly
Islands, and various reefs and reclaimed lands. These are encompassed within
what is known as the Nine-Dash Line an area China claims has always
belonged to it in history.
By U.S. Central Intelligence Agency - Asia Maps Perry-Castaeda Map Collection: South China Sea
(Islands) 1988, Public Domain,

On the other hand, the Philippines claims that the disputed features within this
supposed Nine-Dash Line fall within its EEZ, measured off the baselines of
Philippine territory and thus China is in no position to prevent Filipinos to exploit
the resources within them.
The Arbitration of the Permanent Court of Arbitration (PCA).
The Philippines filed the case against China before the International Tribunal of
the Law of the Sea (ITLOS), a specialized international body dealing with disputes
between states that are parties to the UNCLOS. The actual proceedings however,
are being conducted by the Permanent Court of Arbitration (PCA), which acts as
the registry for the ITLOS in the arbitral proceedings. As a body, the PCA has
extensive experiencing hearing disputes under Chapter VII of the UNCLOS, which
is the same part of the UNCLOs under which the Philippines brought suit against
the Peoples Republic of China.

China has refused to formally participate in the proceedings. However it has made
public its arguments against the Philippine claim though various statements
released to the public as well as through letters sent to the individual members of
the Tribunal.
To its credit, the ITLOS has taken every effort to account for the Chinese position
though expressed largely through unofficial means, given the Chinese refusal to
take part in the arbitration in the submissions made by the Philippines.
On October 29, 2015, the PCA released two documents to explain that it had
jurisdiction over the case between the Republic of the Philippines and the Peoples
Republic of China.
This ruling however, is limited only to the first phase of the arbitration, which
concerns whether the arbitral body may actually hear the Philippine case. Thus in
this ruling, the tribunal declared that it may proceed to hear the substantive
arguments of the parties on several points.
The experience of other international tribunals shows that sometimes courts can
very well rule in the preliminary or procedural phase that it has the jurisdiction to
adjudicate the questions brought before it by the parties but hold during the
merits or substantive phase that it has no jurisdiction to make any ruling on the
substantive issues concerned. Thus, winning in the procedural phase does not
guarantee winning in the substantive phase.
Recently, it was announced that the merits of the case will finally be decided and
released by the first week of July 2016. In a few weeks, the PCA will finally resolve
the substantive claims of the Philippines against China.
At this juncture, it is important to note the following: (1) the issues the arbitration
will not address, (2) the issues to be resolved in the arbitration, and (3) the
positions of the parties.
The Arbitration does not address which State has sovereignty or
ownership over the features within the West Philippine Sea.
Although it seems as though the Philippines and China are simply arguing over
who has title over the features such as the Spratly Islands, such is not the case.
Since the UNCLOS only deals with the law of the sea, any arbitration arising out of
the rules under the UNCLOS are limited to such rules. Thus, the tribunal cannot
resolve a dispute concerning sovereignty over land, or island for that matter.
Under international law, States may only claim title over lands or habitable
islands. Strictly speaking, States do not exercise sovereignty over the waters or
the seas the UNCLOS merely provides or delimits certain rights to States, such
as the right to explore or exploit the waters, otherwise known as sovereign
rights.
Sovereign rights are not equivalent to full sovereignty or ownership of a state
over a land territory or an island.
Where a state has full sovereignty, it may impose in the area found within its
scope all of its laws and exercise acts of ownership in the area. The concept of

sovereign rights however, deals only in general with a states right to exploit
resources over a defined maritime area, to the exclusion of other states.
While sovereign rights may not be coextensive with full sovereignty,
nevertheless, it is of exceeding importance in such an area as the West
Philippine Sea teeming with oil and natural gas, as well as rich fishery
stocks, not to mention extensive areas known for their rich biodiversity.

Maritime Zones under the UNCLOS

The UNCLOS provides that coastal States have sovereign rights to a Contiguous
Zone, a Continental Shelf, and an EEZ, to be measured off the baseline of its
territory.
The Contiguous Zone is an area extending for 12 nautical miles from the limits of
the territorial sea or 24 nautical miles from the baseline. It is an area adjacent to
the territorial sea where a state may exercise certain protective jurisdiction, such
as customs enforcement, fiscal, immigration and sanitary rules.
The EEZ is an area adjacent to the territorial sea extending up to 200 nautical
miles from the baselines from which the territorial sea is also measured. Within
the EEZ, a state has sovereign rights to explore, exploit, conserve and manage
natural resources, as well as build artificial islands, carry out environmental
protection and conduct marine scientific research.

The Continental Shelf is the undersea natural prolongation of the landmass of a

State extending beyond the territorial sea up to 200 nautical miles from the
baselines of the territorial sea. It is coextensive with the EEZ, but may extend for
another 150 nautical miles under the Extended Continental Shelf (ECS) Regime,
depending on the presence of certain geological features.
Oil and natural gas are often found in the Continental Shelf.
Thus, the UNCLOS provides the rules for establishing a states maritime
entitlements. It does not deal with the question of who owns land territories or
islands for that matter. The issue of full sovereignty is determined by the rules of
effectivite or exercise of sovereign acts something beyond the scope of the
current arbitration.
The Arbitration could determine the marine entitlements of the features
within the West Philippine Sea
Without declaring which State exercises sovereignty over features such as the
Spratly Islands, the PCA could, however, declare the legal entitlements of the
features. In other words, while the PCA cannot say that a certain island belongs to
China or the Philippines, it can however say that a certain feature is, in fact and
law, an island.
According to the UNCLOS, an island is a naturally formed area of land,
surrounded by water, which is above water at high tide. Additionally, islands
must be able to sustain human habitation or economic life. Meanwhile rocks are
protrusions those that cannot sustain human habitation or economic life.
If the PCA declares a certain feature to be an island, then the international
community must respect all legal entitlements associated to such an island. Such
would be entitled to a territorial sea, a Contiguous Zone, and Exclusive Economic
zone and Continental shelf much like any other land territory. On the contrary, if
a certain feature is merely a rock, it would only be entitled to no more than the 12
nautical mile-territorial sea.
The PCA may also hold that some of these disputed features in the West
Philippine Sea are merely low-tide elevations which are part of the seabed and
cannot be acquired by a state, unless they are part of its continental shelf.
Nevertheless, the status of such elevations under international law is disputed
vigorously by China.
What are the issues raised before the Permanent Court of Arbitration?
The issues of the arbitration can be summarized into two:
(1) Whether or not the Nine-Dash Lines are ineffective and inconsistent with
international law?
(2) Whether or not the various features within the West Philippine Sea/South
China Sea generate maritime zones under the UNCLOS?
(3) Whether or not Panatag island falls within the Philippines Exclusive
Economic Zone
What is the Philippines position on the case?
The Philippine position, summarized, is as follows:

(1)
(2)
(3)

(4)

(5)

Chinas claim and exercise of sovereign rights pursuant to the supposed

Nine-Dash Line is ineffective and inconsistent with international law, as the
line exceeds maritime entitlements under UNCLOS;
The Philippines is entitled to a territorial sea, an EEZ, and a Continental
Shelf under the UNCLOS and to enjoy sovereignty and sovereign rights as
appropriate to these maritime entitlements.
The various features in the West Philippine Sea, such as Mischief Reef,
Second Thomas Shoal, and others, are low-tide elevations that are not
entitled to certain maritime zones under the Law of the Sea that China
may lay a claim over;
Accordingly, Chinas acts of preventing Philippine nationals from enjoying
its sovereign rights within these areas and those areas over which it is
entitled under UNCLOS, as well as its alleged construction, exploration and
exploitation activities are inconsistent with its obligations under the Law of
the Sea.
The Philippines has sovereign rights over the waters outside the 12
nautical miles of Scarborough shoal but within the 200 nautical miles of
the countrys EEZ.

What is Chinas position on the case?

Briefly, based on reports and statements made by Judge Due Hanquin of the
Asian Society of International Law, the Chinese position is as follows:
(1)
(2)

The arbitral tribunal has no subject matter jurisdiction since what are
involved are maritime territories generated by land territories;
Assuming arguendo that the Tribunal has subject matter jurisdiction, it is
barred because it is a matter of delimitation, which China has reserved
from the jurisdiction of the UNCLOS dispute settlement procedure.

Thus, the Philippines makes the following claims in regard to certain features in
dispute (the Tribunals October 29, 2015 holdings on jurisdiction and admissibility
of the claims are also presented):
Features/claims in
dispute

Location

Philippine Position

The legality and

validity of the
Chinese Nine Dash
Line Claim

Entirety of the
West Philippine
Sea

These are
excessive and
violate the
maritime
entitlements under
the Law of the Sea

Tribunals
ruling on
jurisdictional
issues
Thepossible
jurisdictional
objectionswith
respecttothe
disputedoesnot
possessan
exclusively
preliminary
characterasthese
mayinvolvea
discussionon
historicbaysand
titles,whichare
outsidethe

Tribunals
jurisdiction.
Accordingly,the
Tribunalreserveda
decisiononits
jurisdictionwith
respecttothe
Philippinesfor
considerationin
conjunctionwith
themeritsofthe
Philippines
claims.
Chinas alleged
Interference with the
Philippines
petroleum
exploration, seismic
surveys, and fishing
in what the
Philippines claims as
its exclusive
economic zone as
well as Chinese
fishing within the
same zone.

Chinese fishing
within the
Scarborough Shoal

Waters around the

features in dispute

The Philippines is
entitled to
sovereign rights in
these areas

The Shoal is within

the Philippines
EEZ

The PCA
reserved its
ruling on
jurisdiction on
this point for
consideration
in the Merits
phase, because
of potential
overlapping
maritime
entitlement
claims with
China (the
presence of
which h would
entail a
delimitation of
boundaries, a
process
outside the
Tribunals
jurisdiction).
To the extent
that the
claimed rights
and alleged
interference
occurred within
the territorial
sea of
Scarborough
Shoal, the
Tribunal
concludes that
it has
jurisdiction to
address the
matters raised
in the
Philippines

claims.

The dispute
concerning the
protection and
preservation of the
marine environment
at Scarborough Shoal
and Second Thomas
Shoal

Both the Spratlys

Group of Islands
and the
Scarborough shoal
area

The Chinese has

violated its
obligations to
protect the marine
environment under
the UNCLOS and
related treaties

The Tribunal
has jurisdiction
over this
question.

The legality of
Chinas activities on
Mischief
Reef and their effects
on the marine
environment.

Spratlys Group of
Islands

Chinese
construction
activities are illegal

The dispute on
Chinas law
enforcement
activities in the
vicinity of
Scarborough Shoal.

Scarborough
Shoal area

These are illegal

activities

The dispute
concerning Chinas
activities in and
around Second
Thomas Shoal and
Chinas interaction
with the Philippine

Spratlys Group of
Islands

These are illegal

activities

The Tribunal
reserved its
ruling on
jurisdiction on
this point for
consideration
in the Merits
phase, as it
would first
require a
determination
as to whether
the Reef is an
island or a rock
under the
UNCLOS.
To the extent
that the
claimed rights
and alleged
interference
occurred within
the territorial
sea of
Scarborough
Shoal, the
Tribunal
concludes that
it has
jurisdiction to
address the
matters raised
in the
Philippines
Submission.
The Tribunal
considers the
specifics of
Chinas
activities in
and
around Second

military forces
stationed on the
Shoal.

That China refrain

from further
interfering with
Philippine activities
or from carrying out
its unlawful activities
s

Mischief Reef, Subi

Reef and Second
Thomas Shoal

Thomas Shoal
and whether
such activities
are military in
nature to be a
matter
best assessed
in conjunction
with the
merits.
Both the Spratlys
Group of Islands
and Scarborough
Shoal

China is obligated
under UNCLOS to
cease and desist

The Tribunal
considers the
specifics of
Chinas
activities ion
this point
to be a matter
best assessed
in conjunction
with the
merits.

Spratlys Group of
Islands

These are
submerged
features not above
sea level at high
tide, not islands
under the
Convention but
China has illegally
occupied them and
constructed
structures on them.

The Tribunal
reserved its
ruling on
jurisdiction on
this point for
consideration
in the Merits
phase, because
of potential
overlapping
maritime
entitlement
claims with
China (the
presence of
which h would
entail a
delimitation of
boundaries, a
process
outside the
Tribunals
jurisdiction).

Moreover, Mischief
Reef and Second
Thomas Shoal are
part of the
exclusive economic
zone and
continental shelf of
the Philippines;

Scarborough Shoal

Off the coast of

Zambales

Are submerged
features like the
above, but have
protrusions that
remain above the
waters even at
high tide,

The Tribunal
found that it
has jurisdiction
to hear the
Philippines
claim over the
features, of the

qualifying them as
rocks that generate
no more than a
territorial sea and
no entitlement to
an exclusive
economic zone or
continental shelf;

shoal there
being no
potential
overlapping
claims with
China or any
other state.

Johnson Reef,
Cuarteron Reef and
Fiery Cross Reef

Spratlys Group of
Islands

Are submerged
features like the
above, but have
protrusions that
remain above the
waters even at
high tide,
qualifying them as
rocks that generate
no more than a
territorial sea and
no entitlement to
an exclusive
economic zone or
continental shelf

The Tribunal
found that it
has jurisdiction
to hear the
Philippines
claim over
these features,
there being no
potential
overlapping
claims with
China or any
other state.

Gaven Reef and

McKennan Reef
(including Hughes
Reef)

Spratlys Group of
Islands

Are low-tide
elevations that do
not generate
entitlement to a
territorial sea,
exclusive economic
zone or continental
shelf, but their lowwater line may be
used to determine
the baseline from
which the breadth
of the territorial
sea of Namyit and
Sin Cowe,
respectively, is
measured;

The PCA
reserved its
ruling on
jurisdiction on
this point for
consideration
in the Merits
phase, because
of potential
overlapping
maritime
entitlement
claims with
China (the
presence of
which h would
entail a
delimitation of
boundaries, a
process
outside the
Tribunals
jurisdiction).

10

How will the tribunal likely decide?

Many observers have opined that the Tribunals ruling in the merits phase would
go the way of the Philippines.
Yet it would be more likely that the Tribunal will not declare the Nine-Dash Line
illegal.
The most contentious issue at the moment is that of the Itu Aba, a feature located
within the Spratly Islands. This was a sore point within the Philippine delegation,
as Justice Antonio Carpi o has insisted that this be included in the Philippine
claims, saying that it is too small to be an island.
The then Solicitor General, Francis Jardeleza (now also an Associate Justice of the
Supreme Court) and who nurtured the Philippine claim until it was filed with the
ITLOS, disagreed, saying that it is in fact the largest of the features and is clearly
able to sustain human life, with a source of fresh water and a population (it is
under the control of Taiwan).
The Itu Aba is believed by many experts to remain above sea level at high tide
and contain enough fresh water to sustain human life, which would qualify it as an
island in the view of international law.
If the PCA declares the Itu Aba to be an island, both the Philippines and China
would then be in a situation where the sovereignty over that island would first
have to be resolved as a condition precedent to declaring the Nine-Dash Line
illegal. Remember that the Philippines adheres to the One-China policy, which
then requires it to recognize the feature as part and parcel of the Chinese claim.
If the island does indeed belong to China, then China would be entitled to a 200mile EEZ opposite Palawan. This would not only seem to justify Chinas actions; it
would also complicate the issue by creating an overlap of EEZs among states
which would require delimitation something China has reserved from UNCLOS
dispute settlement procedures consistent with the treaty.
If Itu Aba or any other feature is indeed declared an island, then the Tribunal may
accept the Chinese position. The lawfulness of the Nine-Dash Line could be
viewed as a mixed claim that involves resolving an issue of territorial
sovereignty something beyond the jurisdiction of a dispute settlement under the
UNCLOS.
The Tribunal will likely declare the other features as low-tide elevations not
entitled to maritime zones.
As a matter of fact, many of the features within the West Philippine Sea are not
islands able to sustain human life. Thus, the Tribunal will declare them simply as
low-tide elevations. However, this being the case, so long as one feature, such as
the Itu Aba, is declared an island, such would prove to be difficult for the
Philippines to achieving its ultimate goal of declaring the Nine-Dash Line unlawful.
The Tribunals decision regarding Chinas activities in the West Philippine Sea will
depend on its ruling on the Nine-Dash Line issue.

11

Should the Tribunal decide that it cannot declare the Nine-Dash Line unlawful for
lack of jurisdiction, it would follow that the Tribunal will not rule on the acts of
China towards the Philippine fishermen. This is because the rights of both parties
within the waters would remain undecided until the issue of sovereignty is
resolved.
How should the Philippine government react to such a decision?
If the Tribunal should refuse to declare the Nine-Dash Line unlawful (either on the
merits or due to lack of jurisdiction), the Philippines would be left with no other
choice but to reengage in diplomatic relations. By negotiating with China
peacefully, the Philippines could seek for compromises in protecting the rights
and welfare of Philippine fishermen.
Should the Philippines seek to claim sovereignty over the features within the West
Philippine Sea, it may certainly do so, subject to Chinas willingness to enter into
another arbitration for that purpose. But the chances of that are almost nonexistent, in light of Chinas previous behavior.
Moreover, even if the Tribunal should declare the Nine-Dash Line unlawful, the
Philippines should still improve its diplomatic relations with China to encourage
the latter to respect the ruling.
Unlike in domestic proceedings where the State may use police power to execute
judgments, no such effective power exists under international law. Compliance
with rulings of international tribunals and arbiters relies heavily on international
comity and respect for international law.
International law, being founded for the most part on the consent of states, has
been traditionally critiqued as ineffective and not real law because of the
absence of a centralized enforcement mechanism one usually sees in the
domestic level.
It has been argued that China, a country straining hard to acquire leadership
status among the nations, cannot really afford a brazen disregard of international
rules to which it has itself signed on. Thus, even if at the beginning, it refuses to
abide by a ruling favorable to the Philippines, in the long run, it will have to
reckon with it, as going against it will affect its trade and diplomatic relation with
other countries.
But any ruling on the Nine-Dash Line claim will not by itself resolve all the
territorial disputes in the South China Sea, inasmuch as it will only pertain to the
maritime reaches of the Chinese claim.
It has to be remembered that the UNCLOS only applies to maritime regimes, but
not to
conflicts involving islands. The latter conflicts will have to refer to
general international law, which involve the question of who has better title to a
particular island or land territory based on effective occupation.
Still, an arbitral ruling on Chinas claims to alleged islands and rocks that are under
water, as well as the issue of which state may have sovereign rights on the waters
surrounding then, will make the resolution of the entirety of the territorial conflicts
in the South China Sea a little less complicated.

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