Philippines v.
China (PCA case number 201319), also known as the South China Sea Arbitration, was an
arbitration case brought by the Republic of the Philippines against the Peoples Republic of China under Annex
VII to the United Nations Convention on the Law of the Sea (UNCLOS) concerning certain issues in the South
China Sea including the legality of China's "nine-dotted line" claim.[2]
On 19 February 2013, China declared that it would not participate in the arbitration.[3] On 7 December 2014, a
white paper was published by China to elaborate its position.[4][5] On 29 October 2015, the arbitral tribunal
ruled that it has jurisdiction over the case,[6] taking up seven of the 15 submissions made by the Philippines.[7]
On 12 July 2016, the tribunal ruled in favor of the Philippines. It clarified that it would not "...rule on any
question of sovereignty over land territory and would not delimit any maritime boundary between the Parties".
[8][9] The tribunal also ruled that China has "no historical rights" based on the "nine-dash line" map.[8][9] The
People's Republic of China has rejected the ruling, as has the Repulic of China on Taiwan
The dispute has been affected by the fact that, after Japan renounced all claims to the Spratly Islands and other
conquered islands and territories in the Treaty of San Francisco and Treaty of Peace with the Republic of China
(Taiwan) signed on 8 September 1951, it did not indicate successor states[12] since China was not invited to the
treaty talks held in San Francisco. In reaction to that, on 15 August, the Chinese government issued the
Declaration on the Draft Peace Treaty with Japan by the US and the UK and on the San Francisco Conference
by the then Foreign Minister Zhou Enlai, reitirating China's sovereignty over the archipelagos in the South
China Sea, including the Spratly Islands, and protesting about the absence of any provisions in the draft on who
shall take over the South China Sea islands following Japan's renouncement of all rights, title and claim to
them. It reiterated that "the Chinese government of the day had taken over those islands" and that the PRC's
rightful sovereignty "shall remain intact".[13]
On 28 April 1952, the United States presided over the signing of the Treaty of Peace between Japan and the
Republic of China. Article 2 of the document provided that "It is recognized that under Article 2 of the Treaty of
Peace which Japan signed at the city of San Francisco on 8 September 1951 (hereinafter referred to as the San
Francisco Treaty), Japan has renounced all right, title, and claim to Taiwan (Formosa) and Penghu (the
Pescadores) as well as the Spratly Islands and the Paracel Islands."[13]
The Philippines bases its claim on its geographical proximity to the Spratly Islands.[14]
In May 1956, the dispute escalated after Filipino national Tomas Cloma and his followers settled on the islands
and declared the territory as "Freedomland", now known as Kalayaan for himself and later requested to make
the territory a protectorate of the Philippines.[15] Tomas Cloma even stole China (ROC)'s national flag from the
Taiping Island. In July 1956, he apologized officially for his act and he surrendered the flag he stole to China's
embassy in Manila. On 2 October 1956, he wrote a letter and ensured he would not make further training
voyages or landings in the territorial waters of China (ROC).[16]
Philippine troops were sent to three of the islands in 1968,[15] when the Philippines were under President
Ferdinand Marcos. In the 1970s, some countries began to invade and occupy islands and reefs in the Spratlys.
[17][18] The Spratlys were placed under the jurisdiction of the province of Palawan in 1978.[15]
The People's Republic of China (PRC) claims it is entitled to the Paracel and Spratly Islands because they were
seen as integral parts of the Ming dynasty.[14] China and Taiwan have these same territorial claims.[14] The
Republic of China (Taiwan) took control of the largest island - Taiping Island - in the group since 1946.[15]
Vietnam states that the islands have belonged to it since the 17th century, using historical documents of
ownership as evidence.[14] Hanoi began to occupy the westernmost islands during this period.[14]
In the early 1970s, Malaysia joined the dispute by claiming the islands nearest to it.[19]
Brunei also extended its exclusive economic zone, claiming Louisa Reef.[19]
Optional exceptions to applicability of compulsory procedure[edit]
Article 298 of Section 3 of Part XV of the Convention provides optional exceptions to applicability of
compulsory procedures provided in Section 2. China made declaration in accordance with the UN Convention
on the Law of the Sea in 2006 not to accept any of the procedures provided for in section 2 of Part XV of the
Convention. Many countries including the United Kingdom, Australia, Italy, France, Canada, and Spain made
similar declarations to reject any of the procedures provided for in sections 2 of Part XV of the Convention with
respect to the different categories of disputes.
Participants[edit]
The arbitration involved the Philippines and China.[22]
Philippine stance[edit]
The Philippines contended that the "nine-dotted line" claim by China is invalid because it violates the UNCLOS
agreements about exclusive economic zones and territorial seas.[23] It says that because most of the features in
the South China Sea, such as most of the Spratly Islands, cannot sustain life, they cannot be given their own
continental shelf as defined in the convention.[24]
Chinese stance[edit]
China refused to participate in the arbitration, stating that several treaties with the Philippines stipulate that
bilateral negotiations be used to resolve border disputes. It also accuses the Philippines of violating the
voluntary Declaration on the Conduct of Parties in the South China Sea, made in 2002 between ASEAN and
China, which also stipulated bilateral negotiations as the means of resolving border and other disputes.[25][26]
[27] China issued a position paper in December 2014 arguing the dispute was not subject to arbitration because
it was ultimately a matter of sovereignty, not exploitation rights.[28] Its refusal will not prevent the PCA
tribunal from proceeding with the case.[29] After the award ruling, the PRC issued a statement rejecting it as
'null' and having decided not to abide by the arbitral tribunal's decision, said it will "ignore the ruling".[30]
Claimants of the South China Sea[edit]
Taiwanese stance[edit]
The arbitral tribunal has not invited Taiwan to join the arbitration, and no opinion of Taiwan has been sought.
[31] The Philippines claimed that Taiping Island is a rock. In response,[32] President Ma Ying-jeou of Taiwan
rejected the Philippines' claim as "patently false".[33] Taiwan invited the Philippines and five arbitrators to visit
Taiping Island; the Philippines rejected the invitation, and there was no response from the PCA tribunal.[34]
Vietnamese stance[edit]
On 11 December 2014, Vietnam filed a statement to the tribunal which put forward three points: 1) Vietnam
supports the filing of this case by the Philippines, 2) it rejects China's "nine-dashed line", and 3) it asks the PCA
tribunal to take note of Vietnam's claims on certain islands such as the Paracels.[35]
Other stances[edit]
Brunei sent its own UNCLOS claim through a preliminary submission prior to the arbitration.[36] In May 2009,
Malaysia and Vietnam, as well as Vietnam alone, filed claims to the International Tribunal for the Law of the
Sea with regard to the islands [clarification needed]. This was in relation to extending their claimed continental
shelves and Exclusive Economic Zones. The People's Republic of China rejected the claims since those violate
the "nine-dotted line". The Philippines challenged the Malaysian claim stating that the claims overlap with the
North Borneo dispute.[37]
Indonesia made a comment on China's claim by saying that the features are rocks and cannot sustain life,
effectively calling the Chinese claim invalid. The Philippines echoed Indonesia's claims, further stating that the
islands belong to them through geographic proximity.[37][38]
Arbitration[edit]
Hearings[edit]
On 7 July 2015, case hearings began with the Philippines asking the tribunal to invalidate China's claims. The
hearings were also attended by observers from Indonesia, Japan, Malaysia, Thailand and Vietnam.[6] The case
has been compared to Nicaragua v. United States due to similarities of the parties involved such as that a
developing country is challenging a permanent member of the United Nations Security Council in an arbitral
tribunal.[39]
On 29 October 2015, the PCA tribunal ruled that it had the power to hear the case. It agreed to take up seven of
the 15 submissions made by Manila, in particular whether Scarborough Shoal and low-tide areas like Mischief
Reef can be considered islands. It set aside seven more pointed claims mainly accusing Beijing of acting
unlawfully to be considered at the next hearing on the case's merits. It also told Manila to narrow down the
scope of its final request that the judges order that "China shall desist from further unlawful claims and
activities."[7]
The arbitral tribunal scheduled the hearing on merits of the case from 24 to 30 November 2015.[40]
Award on Jurisdiction and Admissibility[edit]
On 29 October 2015, the PCA published the award by the tribunal on Jurisdiction and Admissibility[41] for the
case. The tribunal found that it has jurisdiction to consider the following seven Philippines Submissions. The
number is the Philippines Submissions number. The tribunal reserved consideration of its jurisdiction to rule on
No. 1, 2, 5, 8, 9, 12, and 14.
No.3 Philippines position that Scarborough Shoal is a rock under Article 121(3).
No.4 Philippines position that Mischief Reef, Second Thomas Shoal, and Subi Reef are low tide elevations that
do not generate entitlement to maritime zones.
No.6 Whether Gaven Reef and McKennan Reef (including Hughes Reef) are low-tide elevations that do not
generate any maritime entitlements of their own".
No.7 Whether Johnson Reef, Cuarteron Reef, and Fiery Cross Reef do or do not generate an entitlement to an
exclusive economic zone or continental shelf.
No.10 "premised on [the] fact that China has unlawfully prevented Philippine fishermen from carrying out
traditional fishing activities within the territorial sea of Scarborough Shoal."
No.11 Chinas failure to protect and preserve the marine environment at these two shoals [Scarborough Shoal
and Second Thomas Shoal].
No.13 Philippines protest against Chinas purported law enforcement activities as violating the Convention on
the International Regulations for the Prevention of Collisions at Sea and also violating UNCLOS.
The tribunal stated in the award that there are disputes in all of the 15 submissions from the Philippines,[41] but
for submissions such as No.3, No.4, No.6 and No.7, no known claims from the Philippines prior to the initiation
of arbitration exist, and China was not aware or opposed such claims prior to the initiation of arbitration.
Chinese Society of International Law (CSIL) states that the tribunal was trying to hide its incapability to prove
that maritime entitlements of the nine features constitute the disputes.[4]
For Submission No.8 to No.14, the tribunal held the view that lawfulness of China's activities in the South
China Sea is not related to sovereignty. CSIL has asserted that disagreements concern territorial sovereignty,
and constitute no dispute with respect to the claims advanced by the Philippines.[4]
Award
On 12 July 2016, the Permanent Court of Arbitration published an arbitration award by the tribunal which it
states is final and binding as set out in the Convention.[30][42] Conclusions expressed in the award included the
following:
Regarding the "Nine-Dash Line" and China's claim in the maritime areas of the South China Sea[43]
The [UNCLOS] Convention defines the scope of maritime entitlements in the South China Sea, which may not
extend beyond the limits imposed therein.[44]
Chinas claims to historic rights, or other sovereign rights or jurisdiction, with respect to the maritime areas of
the South China Sea encompassed by the relevant part of the nine-dash line are contrary to the Convention and
without lawful effect to the extent that they exceed the geographic and substantive limits of Chinas maritime
entitlements under the Convention. The Convention superseded any historic rights or other sovereign rights or
jurisdiction in excess of the limits imposed therein.[45]
Regarding the status of features as above/below water at high tide (Submissions no. 4 and 6)
High-tide features: (a) Scarborough Shoal, (b) Cuarteron Reef, (c) Fiery Cross Reef, (d) Johnson Reef, (e)
McKennan Reef, and (f) Gaven Reef (North).[46]
Low-tide elevations: (a) Hughes Reef, (b) Gaven Reef (South), (c) Subi Reef, (d) Mischief Reef, (e) Second
Thomas Shoal.[47]
Hughes Reef lies within 12 nautical miles of the high-tide features on McKennan Reef and Sin Cowe Island,
Gaven Reef (South) lies within 12 nautical miles of the high-tide features at Gaven Reef (North) and Namyit
Island, and that Subi Reef lies within 12 nautical miles of the high-tide feature of Sandy Cay on the reefs to the
west of Thitu.[48]
Regarding the status of features as rocks/islands (Submissions no. 3, 5, and 7)
Scarborough Shoal contains, within the meaning of Article 121(1) of the Convention, naturally formed areas of
land, surrounded by water, which are above water at high tide. However, under Article 121(3) of the
Convention, the high-tide features at Scarborough Shoal are rocks that cannot sustain human habitation or
economic life of their own and accordingly shall have no exclusive economic zone or continental shelf.[49]
Johnson Reef, Cuarteron Reef, and Fiery Cross Reef contain, within the meaning of Article 121(1) of the
Convention, naturally formed areas of land, surrounded by water, which are above water at high tide. However,
for purposes of Article 121(3) of the Convention, the high-tide features at Johnson Reef, Cuarteron Reef, and
Fiery Cross Reef are rocks that cannot sustain human habitation or economic life of their own and accordingly
shall have no exclusive economic zone or continental shelf.[50]
The high-tide features at Gaven Reef (North) and McKennan Reef are rocks that cannot sustain human
habitation or economic life of their own and accordingly shall have no exclusive economic zone or continental
shelf.[51]
Mischief Reef and Second Thomas Shoal are both low-tide elevations that generate no maritime zones of their
own [and] that none of the high-tide features in the Spratly Islands are capable of sustaining human habitation
or an economic life of their own within the meaning of those terms in Article 121(3) of the Convention. All of
the high-tide features in the Spratly Islands are therefore legally rocks for purposes of Article 121(3) and do not
generate entitlements to an exclusive economic zone or continental shelf. There is, accordingly, no possible
entitlement by China to any maritime zone in the area of either Mischief Reef or Second Thomas Shoal and no
jurisdictional obstacle to the tribunals consideration of the Philippines Submission No. 5.[52]
Both Mischief Reef and Second Thomas Shoal are located within 200 nautical miles of the Philippines coast on
the island of Palawan and are located in an area that is not overlapped by the entitlements generated by any
maritime feature claimed by China. It follows, therefore, that, as between the Philippines and China, Mischief
Reef and Second Thomas Shoal form part of the exclusive economic zone and continental shelf of the
Philippines.[53]
Regarding alleged interference with the Philippines' sovereign rights in its EEZ and continental shelf
(Submission no. 8)
China has, through the operation of its marine surveillance vessels with respect to M/V Veritas Voyager on 1 to
2 March 2011 breached Article 77 of the Convention with respect to the Philippines sovereign rights over the
non-living resources of its continental shelf in the area of Reed Bank [and] that 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 exclusive economic zone 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 exclusive economic zone.[54]
Regarding alleged failure to prevent Chinese nationals from exploiting the Philippines' living resources
(Submission no. 9)
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.[55]
Regarding China's actions in respect of traditional fishing at Scarborough Shoal (Submission no. 10)
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.[56]
Regarding alleged failure to protect and preserve )the marine environment (Submissions no. 11 and 12(B))
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.[57]
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.[58]
Regarding occupation and construction activities on Mischief Reef (Submission no. 12)
China has, through its construction of installations and artificial islands at Mischief Reef without the
authorisation 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 [and], as a low-tide elevation, Mischief
Reef is not capable of appropriation.[59]
Regarding operation of law enforcement vessels in a dangerous manner (Submission no. 13)
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.[60]
Regarding aggravation or extension of the dispute between the parties (Submission No. 14)
China has in the course of these proceedings aggravated and extended the disputes between the Parties through
its dredging, artificial island-building, and construction activities [in several particulars itemized in the award].
[61]
Regarding the future conduct of the parties (Submission no. 15)
Both Parties are obliged to comply with the Convention, including its provisions regarding the resolution of
disputes, and to respect the rights and freedoms of other States under the Convention. Neither Party contests
this.