Angelo Andro M.

Suan
LLb-4

The West Philippine Sea/South China Sea Dispute: The Arbitration Decision
and its Challenges

This paper is in relation to the lecture that discusses the ramifications

of the Final Award that was issued on 12 July 2016 by the UNCLOS Tribunal
at the Hague in the arbitration case filed by the Philippines against China on
the West Philippine Sea dispute. The Final Award invalidates Chinas nine-
dash lines, which encroach on 80 percent of the Philippines 200-NM
exclusive economic zone in the West Philippine Sea. The Final Award also
declares that the Spratly Islands are entitled only to 12-NM territorial Seas
and that the low-tide elevations in the Spratlys like Mischief Reef can be
exploited only by the Philippines. The Final Award further declares that
Filipino fishermen have traditional fishing rights in Scarborough Shoal. The
net result of the Final Award is to clear from any Chinese claim a Philippine
Exclusive Economic Zone in the West Philippine Sea larger than the total land
area of the Philippines. All the fish, oil, gas and mineral resources in this
huge Exclusive Economic Zone belong to the Philippines.

Geography

The South China Sea covers more than 3 million square kilometers (1.16
million square miles), ringed by southern China, Taiwan, the Philippines,
Borneo island, and mainland Southeast Asia.

Most of its hundreds of small islands, islets and rocks were originally
uninhabited. The Paracel and Spratly chains contain the biggest islands.
Scarborough Shoal (Bajo de Masinloc or Panatag Shoal) is a small outcrop in
the east.

Significance

The sea is the main maritime link between the Pacific and Indian oceans,
giving it enormous trade and military value. Its shipping lanes connect East
Asia with Europe and the Middle East. Over $5 trillion in ship-borne trade
passes through the sea annually.

Major unexploited oil and gas deposits are believed to lie under the seabed.

The sea is home to some of the world's biggest coral reefs and, with marine
life being depleted close to coasts, it is important as a source of fish to feed
growing populations.
Claimants

China and Taiwan both claim nearly all of the sea, while Vietnam, the
Philippines, Malaysia and Brunei each have overlapping claims to parts of it.

Beijing's argument is based largely on Chinese maps dating back to the

1940s with a "nine-dashed line" that approaches the coasts of other
countries.

Name

Beijing and most other countries know it as the South China Sea. Hanoi calls
it the East Sea and Manila officially refers to it as the West Philippine Sea.

Occupation

China has held all of the Paracel islands since a conflict with South Vietnam
in 1974. It has controlled Scarborough Shoal, a rich fishing ground 230
kilometers (140 miles) off the Philippine island of Luzon, since 2012 and
occupies at least seven of the Spratly islands. Vietnam is believed to occupy
or control 21 of the Spratlys and the rest are divided between Brunei,
Malaysia, the Philippines and Taiwan.

Conflicts

There have been two armed conflicts between China and Vietnam in the sea.

In 1974, a clash erupted between the South Vietnamese navy and Chinese
forces that left about 50 Vietnamese troops dead.

The other major conflict occurred when Vietnam and China fought a naval
battle on Johnson Reef in the Spratlys in 1988 that killed about 70
Vietnamese military personnel.

Chinese naval vessels have fired at other times on Vietnamese fishing boats
in the area.

Chinese expansion

China has in recent years sought to dramatically expand its presence in the
sea, raising tensions with its neighbors and beyond.

In 2012, China gave new powers to Sansha, a city on Hainan island, to

administer Chinese rule over its South China Sea domain.

Since then, it has conducted massive dredging and artificial island-building

activities in the Spratlys, dwarfing the scale of reclamation work of other
claimants.
The Pentagon said China added 3,200 acres (1,295 hectares) of land to the
seven features it occupies. Beijing installed structures on these new islands,
including radar systems and runways long enough for huge commercial or
military planes.

Chinese coast guard vessels have become an ever-growing presence in the

key parts of the sea, being used to guard Scarborough Shoal and perform
other security duties. The Philippines protested in 2014 after Chinese coast
guard vessels prevented the rotation and resupply of Philippine soldiers
stationed at Second Thomas Shoal.

Failed diplomacy

The 10-member Association of Southeast Asian Nations and China adopted a

non-binding "declaration of conduct" in 2002 to discourage hostile acts. All
sides agreed not to use threats or force to assert claims.

But China has since refused to turn it into a legally binding "code of
conduct".

The dispute has caused deep divisions within ASEAN, which normally seeks
to operate on a basis of consensus among its members. The Philippines has
in particular pushed for a tough ASEAN stance against China. But Chinese
allies Laos and Cambodia have been widely seen as blockers of such moves.

Legal challenges

The Philippines filed its case at the Permanent Court of Arbitration (PCA) in
2013, becoming the first and only country to legally challenge China's
claims.

But Vietnamese and Indonesian officials have said they are considering legal
action.

While not a party to the case, Vietnam also submitted a statement to the
PCA's tribunal in 2014 affirming the court's jurisdiction and rejecting China's
nine-dashed line.

China denies the tribunal has jurisdiction on the issue and insists that it will
not abide by its decision.

The Permanent Court of Arbitration (PCA) on Tuesday, July 12, said an

arbitral tribunal has ruled in favor of the Philippines in its historic case
against China over the West Philippine Sea (South China Sea). The PCA said
the tribunal "concluded that, as between the Philippines and China, there
was no legal basis for China to claim historic rights to resources, in excess of
the rights provided for by the Convention, within the sea areas falling within
the '9-dash line.'"
 The tribunal said that "all of the high-tide features in the Spratly
Islands (including, for example, Itu Aba, Thitu, West York Island, Spratly
Island, North-East Cay, South-West Cay) are legally "rocks" that do not
generate an exclusive economic zone or continental shelf."

In a statement, Philippine Foreign Secretary Perfecto Yasay Jr said the

Philippines "welcomes" the award from The Hague. "Our experts are
studying the Award with the care and thoroughness that this significant
arbitral outcome deserves. In the meantime, we call on all those concerned
to exercise restraint and sobriety," Yasay said. Yasay added that the
Philippines "strongly affirms its respect for this milestone decision" to help
address disputes in the South China Sea.

He added that the decision "upholds international law," particularly the 1982
United Nations Convention on the Law of the Sea.

The 501-page document was uploaded shortly after 11 am in The Hague

time (5 pm in Manila), and was accompanied by a shorter, 11-page press
release summarizing key parts of the award.

The tribunal had the following key rulings:

The so-called "9-dash line" is invalid: "The Tribunal concluded that there was
no legal basis for China to claim historic rights to resources within the sea
areas falling within the '9-dash line.'"

Reclaimed islands have no exclusive economic zone: "The Tribunal noted

that the current presence of official personnel on many of the features is
dependent on outside support and not reflective of the capacity of the
features... (and) ....that none of the Spratly Islands is capable of generating
extended maritime zones.

"The Tribunal found that it could without delimiting a boundary declare

that certain sea areas are within the exclusive economic zone of the
Philippines, because those areas are not overlapped by any possible
entitlement of China."

China has behaved unlawfully: "China had violated the Philippines' sovereign
rights in its exclusive economic zone. The Tribunal further held that Chinese
law-enforcement vessels had unlawfully created a serious risk of collision
when they physically obstructed Philippine vessels."

Beijing has damaged the environment: China's large-scale land reclamation

has "caused severe harm to the coral reef environment and violated its
obligation to preserve and protect fragile ecosystems."

Island building should have stopped during the dispute process: The panel
said it had no jurisdiction over the military standoff at Second Thomas
Shoal, where Chinese and Philippine military and law enforcement vessels
are locked in confrontation.
However, "China's recent large-scale reclamation and construction of
artificial islands was incompatible with the obligations on a state during
dispute resolution proceedings, insofar as China has... destroyed evidence of
the natural condition of features of the South China Sea that formed part of
the Parties' dispute."

Three-year process

This ruling by an arbitral tribunal in The Hague, Netherlands, comes after a

3-year process pursued by Manila but snubbed by Beijing.

The Philippines made the following moves in pursuing the case for the past 3
years:

Filing a case against China on January 22, 2013

Submitting a 4,000-page pleading or memorial on March 30, 2014

Submitting a 3,000-page supplemental memorial on March 17, 2015

Appearing before the arbitral tribunal in The Hague from July 7-13,
2015, to argue that the tribunal has the right to hear the Philippines
case

Returning to The Hague to discuss the merits of its case against China
from November 24-30, 2015

The United Nations-backed tribunal in The Hague junked China's sweeping

"nine-dash-line" claim over the South China Sea and categorically declared
some of its actions as unlawful violations of Philippine sovereign rights.

"The Tribunal found that China had violated the Philippine's sovereign rights
in its exclusive economic zone, by interfering with Philippine fishing and
petroleum exploration, constructing artificial islands and failing to prevent
Chinese fishermen from fishing in the zone," the ruling said.

The tribunal declared that Mischief Reef, Second Thomas Shoal, and Reed
Bank form part of the Philippines' "200 nautical exclusive economic zone and
continental shelf."

There are no overlaps with "any possible entitlement of China" because the
tribunal ruled that all maritime features in the Spratly Islands including the
7 reclaimed reefs are "rocks" that do not generate exclusive economic
zones.

The tribunal also held that the Spratly Islands "cannot generate maritime
zones collectively as a unit."

China has reclaimed Mischief Reef, has repeatedly blocked Philippine Navy
operations in Second Thomas Shoal (Ayungin), and harassed Philippine
exploration vessels in Reed Bank.
Scarborough Shoal

The tribunal also upheld the "traditional fishing rights" of Filipino fishermen
in Scarborough Shoal, a Filipino fishing ground off the coast of Zambales
province that has been practically occupied by the Chinese coast guard since
the 2012 standoff between the two countries.

The tribunal did not decide on the sovereignty of Scarborough Shoal, but
merely recognized it as a traditional fishing ground for many nationalities,
including Filipinos and Chinese.

"[The Tribunal] would reach the same conclusion with respect to the
traditional fishing rights of Chinese fishermen if the Philippines were to
prevent fishing by Chinese nationals at Scarborough Shoal," the ruling said.

Scarborough Shoal, located about 100 nautical miles from Zambales

provinces, is separate from the Spratly Islands. Unlike Mischief Chief, Second
Thomas Shoal, and Reed Bank, the tribunal said it is above water at high
tide. It is entitled to a territorial sea but traditional fishing rights are not
extinguished.

Environmental obligations

The tribunal slammed China for violating its environmental obligations,

causing "severe harm to the coral reef environment" by reclaiming 7
features in the Spratly Islands and by allowing its citizens to harvest
endangered maritimes species.

The tribunal also castigated China for "aggravating" the dispute by

reclaiming reefs and risking sea collisions when it "physically obstructed
Philippine vessels."

The ruling is "final and binding," the ruling added.

These are the highlights of the historic ruling:

"The Tribunal concluded that there was no legal basis for China to
claim historic rights to resources within the sea areas falling within the
nine-dash line'. "

"Having found that Mischief Reef, Second Thomas Shoal and Reed
Bank are submerged at high tide, form part of the exclusive economic
zone and continental shelf of the Philippines, and are not overlapped
by any possible entitlement of China, the Tribunal concluded that the
Convention is clear in allocating sovereign rights to the Philippines with
respect to sea areas in its exclusive economic zone."

"The Tribunal found that China had violated the Philippine's sovereign
rights in its exclusive economic zone, by (a) interfering with Philippine
fishing and petroleum exploration, (b) constructing artificial islands
and (c) failing to prevent Chinese fishermen from fishing in the zone."
 "Because Scarborough Shoal is above water at high tide, it generates
an entitlement to a territorial sea, its surrounding waters do not form
part of the exclusive economic zone, and traditional fishing rights were
not extinguished by the Convention. Although the Tribunal emphasized
that it was not deciding sovereignty over Scarborough Shoal, it found
that China had violated its duty to respect the traditional fishing rights
of Philippine fishermen by halting access to the Shoal after May 2012."

"The tribunal noted that the reefs have been heavily modified by land
reclamation and construction, recalled that the Convention classifies
features on their natural condition, and relied on historical materials in
evaluating the features....Having found that none of the features
claimed by China was capable of generating an exclusive economic
zone, the Tribunal found that it could without delimiting a boundary
declare that certain sea areas are within the exclusive economic zone
of the Philippines, because those areas are not overlapped by any
possible entitlement of China."

"The Tribunal further held that Chinese law enforcement vessels had
unlawfully created a serious risk of collision when they physically
obstructed Philippine vessels."

Upholding UNCLOS

China's "nine-dash-line" claim covers almost the entire South China Sea, a
cow tongue drawn from China's Hainan island in the north to the waters of
Vietnam in the west and the Philippines in the east.

The tribunal said China's claims to historic rights over the seas are
"extinguished" in cases that they are incompatible with the United Nations
Convention on the Law of the Seas (UNCLOS).

Now that the Philippines won its historic case against China over the West
Philippine Sea (South China Sea), the question is how to enforce this ruling
given that there is no international police to do this.

The Philippines lead counsel against China, Paul Reichler, said that
enforcement "will depend on the conduct of other affected states and the
international community in general."

In a telephone conference with select journalists, Reichler explained, "It will

depend to a great extent on how vigorously all of the affected states, all of
the states which have been prejudiced by the 9-dash line, assert their rights
against China."

The 9-dash line is China's demarcation to claim the West Philippine Sea.

An arbitral tribunal at the Permanent Court of Arbitration (PCA)on

Tuesday said that "there was no legal basis for China to claim historic rights
to resources, in excess of the rights provided for by the Convention, within
the sea areas falling within the '9-dash line.'"
In his telephone conference on Tuesday, Reichler explained that, by saying
the words "vigorous" and "assert," he means vigorously asserting rights
"diplomatically, legally, and above all peacefully."

'Not only a victory for the Philippines'

Reichler said: "If these other states stand up for their rights in the way that
the Philippines has done, you'll get the situation where all of the neighboring
states are insisting that China withdraw its illegal claims and respect their
legal rights which have been defined and recognized and acknowledged
today, because those states have the same rights as the Philippines."

Reichler pointed out that the ruling "is also a great victory for the other
coastal states along the South China Sea, in particular Vietnam, Indonesia,
and Malaysia."

He explained that "although the award is legally binding only on the two
parties, China and the Philippines, it has very strong implications for other
coastal states in the South China Sea."

The tribunal's decision was unanimous, finding that Beijing's claims of

historical rights to the region were not founded on evidence and were
counter to international law.

The judges ruled that the specific portion of the South China Sea claimed by
both China and the Philippines belongs to the Philippines alone. None of the
small land features claimed by China is sufficiently large to justify maritime
"exclusive economic zones" for any nation, the tribunal said.

The court concluded that Chinese efforts to create man-made islands on top
of atolls and reefs, as well as its large-scale fishing in the disputed areas, are
illegal. China's interference with the Philippines' fishing and oil exploration of
the region is also unlawful, the tribunal said.

"The award is breathtaking in its scope and the degree to which it gives
long-needed clarity to the law of the sea," Peter Dutton, professor and
director of the China Maritime Studies Institute at the U.S. Naval War
College, told CNBC. The so-called law of the sea is a set of global standards
that affect every ocean-going country.

"That it is a unanimous opinion from five of the most learned and

experienced practitioners of international law of the sea is especially
important," he added. "There has been much speculation that the tribunal
would be too careful of the political implications to make such a sweeping
ruling. I am proud to see that only considerations of law, and not politics,
affected the unanimous ruling."
As expected, China declared that the decision is "null and void and has no
binding force."

China's maritime claim is intentionally ambiguous: Although the nation

periodically presents maps with sketches of the boundary the so-called
nine-dash line it has never explicitly given geographic coordinates, or
even explained to what extent it is claiming ownership over the area.

"China's goal has always been, and remains, to avoid any clarification of its
claims," said Greg Poling, director of the Asia Maritime Transparency
Initiative at the Center for Strategic and International Studies. "It doesn't
want other claimants or the international community to know what it's
claiming so it can change it at any point."

The nine-dash line has allowed China to claim a right to do things ranging
from drilling for oil to actually creating man-made islands without
providing anything specific that other nations could argue against. Tuesday's
arbitration ruling could make it increasingly difficult for Beijing to play that
game.

According to one theory, China's South China Sea island-building and its
deployment of naval and air power in the area could signal that it is hoping
to turn the entire zone into a Beijing-controlled "strategic strait."

The Philippines claims that direct negotiations with China proved to be a

dead end and the Philippines certainly can't convince China with military
might. Similarly, the other nations in the region have made little headway
with China concerning their own competing South China Sea claims. Beijing
insists on one-on-one negotiations, and no one can stand up to China by
themselves.

An international tribunal ruling against the nine-dash line goes a long way
toward offering a framework for a unified front against China, and that is
something that worries Beijing, experts said. Such a decision could "give
more hope to the Philippines and other Asian countries that claim territory in
the South China Sea," according to Andrew Scobell, a political scientist at
the Rand Corp.

The tribunal at The Hague has no enforcement mechanism, but Beijing may
fear a blow to its global reputation if it is seen as flouting international law.
On the other hand, the Chinese Communist Party would have a hard time
explaining any acquiescence to a Chinese population that's been drummed
into a nationalistic fervor over the issue.

"The power of international law is primarily reputational and measured in

terms of legitimacy," Mira Rapp-Hooper, a senior fellow in the Asia-Pacific
Security Program at the Center for New American Security, told CNBC earlier
this year, when China's island-building in the region came under scrutiny.
"My speculation would be that China has basically calculated that it will take
some near-term, rather assertive actions in the South China Sea, and pay
short-term reputation costs in exchange for what it believes to be longer-
term strategic gains."

Many Chinese, politicians and regular citizens alike, see opposition to their
South China Sea claims as opposition to their ascendance on the world
stage.

"China is a rising power and it is feeling restrained by U.S. military presence

in the Western Pacific," said James Keith, former China director for the
National Security Council. "China is fighting back against American
dominance as it tries to carve out a place for itself in the region."