UN Charter says,

"All Members shall refrain in their international relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the
United Nations."

THE PHILIPPINES’ POSITION

The Philippines submits that the Tribunal has jurisdiction to consider its Submissions:

(a) that any rights that China may have had in the maritime areas of the South China Sea beyond those
provided for in the Convention were extinguished by China’s accession to the Convention and

Further, the Phillipines also addresed the following issues, to wit:

1. All historical rights of the other states, including China, had been extinguished by
UNCLOS; therefore, China’s entitlement over the South China Sea has no lawful basis.
China claimed the South China Sea by using the 9-dash line, but, since the 9-dash line is
based on China’s historic rights that were not recognized by the Convention, the 9-dash
line is also deemed unsupported by the law; the 9-dash line was inconsistent with the
UNCLOS.

3. According to Article 121, paragraph 3, of the Convention (regarding the habitable

islands), rocks cannot generate the 200 nautical mile exclusive economic zone; thus,
there are no overlapping exclusive economic zones. Under the UNCLOS, “rocks do not
generate an entitlement of more than 12 miles while islands entitle a state to a 200-
nautical-mile exclusive economic zone, within which it can exploit resources like fish, oil,
and gas. (It is a general principle of international law that sovereignty over land territory
is the basis for the determination of maritime rights.)

4. China doesn’t have 100% rights over the South China Sea mainly the West Philippine
Sea. Its actions on prohibiting Filipinos from fishing on the disputed area interferes with
the Philippine’s rights.

5. Due to China’s construction of artificial islands in the disputed area, the South China
Sea, China buried 311 hectares of coral reefs. The construction of the artificial islands in
the Spratlys was also a violation of Article 192 and 194 of the Convention, which state
that China must preserve, protect, and respect the ecosystem.

Arguments

It is a standard responsibility of the Convention to recognize if a case has enough

jurisdiction or not; thus, China making the argument on the Convention’s lack of
jurisdiction on the case. It has been stated in the position paper of the Government of
the People’s Republic of China that the subject-matter of the arbitration “is the
territorial sovereignty over several maritime features in the South China Sea, which
does not concern the interpretation or application of the United Nations Convention
Law of the Sea (UNCLOS).”

First of all, the arbitration case does concern a maritime dispute, not a territorial
row. Secondly, Article 288 of the Convention states that, “in an event of a dispute as to
whether a court or tribunal has jurisdiction, the matter shall be settled by decision of
that court or tribunal. It is also stated in Article 9 of Annex VII that “… the arbitral
tribunal must satisfy itself (in the situation wherein the other party is unable to appear
before the arbitral tribunal) not only that it has jurisdiction over the dispute but also
that the claim is well founded in fact and law.” Lastly, according to the submissions of
the Philippines nos. 1,2,5,8,9,12, and 14, the tribunal had found that it has the
jurisdiction to consider the following due to it being lawfully supported and factual.

The submissions considered are the following:

(1) China’s maritime entitlements in the South China Sea, like those of the
Philippines, may not extend beyond those expressly permitted by the United
Nations Convention on the Law of the Sea.
(2) China’s claims to sovereign rights jurisdiction, and to “historic rights”, with
respect to the maritime areas of the South China Sea encompassed by the so-
called “nine-dash line” are contrary to the Convention and without lawful
effect to the extent they exceed the geographic and substantive limits of
China’s maritime entitlements expressly permitted by the UNCLOS.
(5) Mischief Reef and Second Thomas Shoal are part of the exclusive economic
zone and continental shelf of the Philippines.
(8) China has unlawfully interfered with the enjoyment and exercise of the
sovereign rights of the Philippines with respect to the living and non-living
resources of its exclusive economic zone and continental shelf.
(9) China has unlawfully failed to prevent its nationals and vessels from
exploiting the living resources in the exclusive economic zone of the
Philippines.
(12) China’s occupation of and construction activities on Mischief Reef
a. Violate the provisions of the Convention concerning artificial islands,
installations, and structures
b. Violate China’s duties to protect and preserve the marine environment
under the Convention
c. Constitute unlawful acts of attempted appropriation in violation of the
Convention
(14) Since the commencement of this arbitration in January 2013, China has
unlawfully aggravated and extended the dispute by, among other things:
a. Interfering with the Philippines’ right of navigation in the waters at, and
adjacent to, Second Thomas Shoal
b. Preventing the rotation and resupply of Philippine personnel stationed at
Second Thomas Shoal
c. Endangering the health and well-being of Philippine personnel stationed at
Second Thomas Shoal
d. Conducting dredging, artificial island-building and construction activities at
Mischief Reef, Cuarteron Reef, Fiery Cross Reef, Johnson Reef, Hughes
Reef, and Subi Reef.
 China has no entitlement whatsoever to exercise what it refers to as historical
rights over the waters, seabed, and subsoil beyond the limits of its entitlements under
the convention. It is a fact that the South China Sea is a possession of China for many
centuries. Despite the truth of that fact, the entitlement of the historical rights and its
ability to be exercised has no validity or no bearing on the sea disputes under the
UNCLOS. China had historic rights to the resources in the waters of the South China Sea,
but such rights were extinguished to the extent that they were incompatible with the
exclusive economic zones provided in the Convention and the Convention’s system of
maritime zones.

Indeed the territory is theirs, but the jurisdiction and the ability to exercise such
prohibitions and actions is inadmissible. There was no legal basis for China to claim
historic rights to the resources within the sea areas falling within the ‘9-dash line’ under
the UNCLOS, the UN Convention, on the other hand, allows an EEZ. Speaking of the 9-
dash line,

According to articles 13 and 121 of the Convention, “features that are above
water at high tide generate an entitlement to at least 12 nautical mile territorial sea,
features that are submerged at high tide, on the other hand, generate no entitlement to
maritime zones. (The Scarborough Shoal, Johnson Reef, Fiery Cross Reef, Gaven Reef
(north), and McKennan Reef are high-tide features; Subi Reef, Hughes Reef, Mischief
Reef, and Second Thomas Shoal were submerged at high-tide.)

According the China’s claim, the Scarborough Shoal, an ‘island’, is able to

generate an EEZ, which could overlap with the EEZ of the Philippines, but, in reality, it
doesn’t. In defense, the Scarborough Shoal is not an island and is described to be a
rocky sandbar; therefore, the said rocky sandbar is not able to have an entitlement and
an exclusive economic zone, and the said overlapping of economic zones would not be
of mind anymore.

Laws are believed to have prevented utter chaos. Each and every one are given
rights and duties that are to be followed. China has breached the laws of the Convention
by interfering with the Philippines’ exercise of its sovereign rights and jurisdiction. It has
been seen that China prevented Filipino fishermen from fishing in the West Philippine
Sea. UNCLOS, on the other hand, gave the Filipinos exclusive rights to fish within the
Philippines’ EEZ in the disputed waters.

Keep in mind that the area of exploitation at the Scarborough Shoal was within
the said exclusive economic zone; the Philippines never provoked or violated the laws
whatsoever when the fishermen were at the area. China, on the contrary, broke the
treaty that they have signed since they prohibited a right of a country to visit and
exploit the area within the exclusive economic zone (refer to Article 121, paragraph 3,
of the UNCLOS “rocks do not generate an entitlement of more than 12 miles while
islands entitle a state to a 200-nautical-mile exclusive economic zone, within which it
can exploit resources like fish, oil, and gas.)

Apart from the prohibition and abusing of rights, China has also violated the
Convention by the construction of artificial islands – China’s reclamation activites.
According to the reports, due to the construction in the Spratlys’ area, 311 hectares of
coral reefs were buried (the damage done is estimated to be around 7 times the size of
the Vatican and an estimate of 4.8 billion PHP lost in economic benefits), permanently
damaging the environment. It has been stated in the law, specifically of Article 192 and
194 of the Convention, that a state must preserve, protect, and respect the ecosystem,
in which, based on such facts, China has violated. In addition to their violations, it has
also been reported that aside from China’s destructive and hazardous fishing practices,
they have also been harvesting endangered species.

THE PHILIPPINES’ POSITION

The Philippines submits that the Tribunal has jurisdiction to consider its
Submissions. On the merits, the Philippines argues:

(a) that any rights that China may have had in the maritime areas of the South
China Sea beyond those provided for in the Convention were extinguished by
China’s accession (act whereby a state accepts the offer or opportunity to become
a party to a treaty already negotiated and signed by other states. Has the same
effect as ratification.) to the Convention and

(b) that China never had historic rights in the waters of the South China Sea.

1) The Philippines’ decision to commence the arbitration was not an abuse of the
Convention’s dispute settlement procedures (refer to Article 288 of the
Convention: “in the event of a dispute as to whether a court or tribunal has
jurisdiction, the matter shall be settled by decision of that court or tribunal.”, and
Article 9 of Annex VII: “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 by fact and law.”

The Philippine arbitration case against China does not involve a territorial
dispute but exclusively maritime disputes involving the interpretation or
application of UNCLOS, particularly: Whether China’s nine-dashed line claim,
supposedly based on historic rights, can generate maritime entitlements that
can encroach on or overlap with the 200 NM Philippine EEZ; Whether certain
geologic features, within Philippine EEZ, are (1) mere rocks above water at
high tide that generate no EEZ but only a territorial sea; or (2) LTEs that
are not entitled to a territorial sea and thus form part of the continental
shelf of Philippine EEZ; Whether certain geologic features, outside Philippine
EEZ, are (1) mere rocks above water at high tide that generate no EEZ but only
a territorial sea; or (2) LTEs that generate no territorial sea and thus form
part of the continental shelf; Whether China violated the sovereign rights and
jurisdiction of the Philippines within Philippine EEZ. The Philippines did not
ask the Arbitral Tribunal to rule which state is sovereign over certain
islands or rocks above water at high tide. Rather, the Philippines asked the
Arbitral Tribunal to rule on the extent of the maritime entitlements (0, 12 or
200 NM) of certain geologic features, regardless of which state, if any,
exercises sovereignty over them. All these are maritime disputes governed by
UNCLOS.
China claims that the fundamental principle in the Law of the Sea — that
“land dominates the sea” — requires that sovereignty over the land must
first be decided before maritime entitlements can be determined. However, the
nine-dashed line is not measured from land so this fundamental principle,
which requires maritime entitlements to be measured from land, cannot apply.

What applies is the reverse — the absence of land dominates no sea. Since the
ninedashed line is not measured from land, and even completely ignores land as
basepoints of the line, the line cannot claim any sea. Sovereignty does not
affect the physical attributes of an island, a high-tide elevation or an LTE.
An LTE beyond the territorial sea, like Mischief Reef, remains an LTE
incapable of sovereign ownership by any state, whether it is claimed by China,
the Philippines or another state. An UNCLOS tribunal can decide whether a
geologic feature is a rock above water at high tide or submerged at high tide.
This issue is not a dispute on sovereignty, but a dispute on maritime
entitlement. The resolution of this dispute will not resolve the sovereignty
issue but only the maritime entitlement of the geologic feature. In fact, if
the geologic feature is declared an LTE beyond the territorial sea, the LTE is
not even capable of sovereign appropriation or sovereign ownership by any
state. The dispute — arising from the ninedashed line as derived from
historic rights — is a dispute involving the interpretation of UNCLOS, that
is, whether under UNCLOS, historic rights can serve as basis to claim maritime
entitlements beyond the territorial sea. This is not a dispute involving sea
boundary delimitation of overlapping territorial seas, overlapping EEZs or
overlapping ECSs between coastal states.

Summary of Arguments

2) The Philippines’ decision to commence the arbitration was not an abuse of the
Convention’s dispute settlement procedures (refer to Article 288 of the
Convention: “in the event of a dispute as to whether a court or tribunal has
jurisdiction, the matter shall be settled by decision of that court or tribunal.”, and
Article 9 of Annex VII: “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 by fact and law.”
3) All historical rights of the other states, including China, had been extinguished by
UNCLOS; therefore, China’s entitlement over the South China Sea has no lawful
basis.
4) China claimed the South China Sea by using the 9-dash line, but, since the 9-
dash line is based on China’s historic rights that were abolished by the
Convention, the 9-dash line is also deemed unsupported by the law; the 9-dash
line was inconsistent with the UNCLOS.
5) According to Article 121, paragraph 3, of the Convention (regarding the habitable
islands), rocks cannot generate the 200 nautical mile exclusive economic zone;
thus, there are no overlapping exclusive economic zones. Under the UNCLOS,
“rocks do not generate an entitlement of more than 12 miles while islands entitle
a state to a 200-nautical-mile exclusive economic zone, within which it can
exploit resources like fish, oil, and gas. (It is a general principle of international
law that sovereignty over land territory is the basis for the determination of
maritime rights.)
6) China doesn’t have 100% rights over the South China Sea mainly the West
Philippine Sea. Its actions on prohibiting Filipinos from fishing on the disputed
area interferes with the Philippine’s rights.
7) Due to China’s construction of artificial islands in the disputed area, the South
China Sea, China buried 311 hectares of coral reefs. The construction of the
artificial islands in the Spratlys was also a violation of Article 192 and 194 of the
Convention, which state that China must preserve, protect, and respect the
ecosystem.

Arguments

It is a standard responsibility of the Convention to recognize if a case has enough

jurisdiction or not; thus, China making the argument on the Convention’s lack of
jurisdiction on the case. It has been stated in the position paper of the Government of
the People’s Republic of China that the subject-matter of the arbitration “is the
territorial sovereignty over several maritime features in the South China Sea, which
does not concern the interpretation or application of the United Nations Convention Law
of the Sea (UNCLOS).”

First of all, the arbitration case does concern a maritime dispute, not a territorial
row. Secondly, Article 288 of the Convention states that, “in an event of a dispute as to
whether a court or tribunal has jurisdiction, the matter shall be settled by decision of
that court or tribunal. It is also stated in Article 9 of Annex VII that “… the arbitral
tribunal must satisfy itself (in the situation wherein the other party is unable to appear
before the arbitral tribunal) not only that it has jurisdiction over the dispute but also
that the claim is well founded in fact and law.” Lastly, according to the submissions of
the Philippines nos. 1,2,5,8,9,12, and 14, the tribunal had found that it the jurisdiction to
consider the following due to it being lawfully supported and factual.

The submissions considered are the following:

 (3) China’s maritime entitlements in the South China Sea, like those of the
Philippines, may not extend beyond those expressly permitted by the United
Nations Convention on the Law of the Sea.
(4) China’s claims to sovereign rights jurisdiction, and to “historic rights”, with
respect to the maritime areas of the South China Sea encompassed by the so-
called “nine-dash line” are contrary to the Convention and without lawful
effect to the extent they exceed the geographic and substantive limits of
China’s maritime entitlements expressly permitted by the UNCLOS.
(6) Mischief Reef and Second Thomas Shoal are part of the exclusive economic
zone and continental shelf of the Philippines.
(10) China has unlawfully interfered with the enjoyment and exercise of the
sovereign rights of the Philippines with respect to the living and non-living
resources of its exclusive economic zone and continental shelf.
(11) China has unlawfully failed to prevent its nationals and vessels from
exploiting the living resources in the exclusive economic zone of the
Philippines.
(13) China’s occupation of and construction activities on Mischief Reef
a. Violate the provisions of the Convention concerning artificial islands,
installations, and structures
b. Violate China’s duties to protect and preserve the marine environment
under the Convention
c. Constitute unlawful acts of attempted appropriation in violation of the
Convention
(15) Since the commencement of this arbitration in January 2013, China has
unlawfully aggravated and extended the dispute by, among other things:
a. Interfering with the Philippines’ right of navigation in the waters at, and
adjacent to, Second Thomas Shoal
b. Preventing the rotation and resupply of Philippine personnel stationed at
Second Thomas Shoal
c. Endangering the health and well-being of Philippine personnel stationed at
Second Thomas Shoal
d. Conducting dredging, artificial island-building and construction activities at
Mischief Reef, Cuarteron Reef, Fiery Cross Reef, Johnson Reef, Hughes
Reef, and Subi Reef.

China has no entitlement whatsoever to exercise what it refers to as historical

rights over the waters, seabed, and subsoil beyond the limits of its entitlements under
the convention. It is a fact that the South China Sea is a possession of China for many
centuries. Despite the truth of that fact, the entitlement of the historical rights and its
ability to be exercised has no validity or no bearing on the sea disputes under the
UNCLOS. China had historic rights to the resources in the waters of the South China Sea,
but such rights were extinguished to the extent that they were incompatible with the
exclusive economic zones provided in the Convention and the Convention’s system of
maritime zones.

Indeed the territory is theirs, but the jurisdiction and the ability to exercise such
prohibitions and actions is inadmissible. There was no legal basis for China to claim
historic rights to the resources within the sea areas falling within the ‘9-dash line’ under
the UNCLOS, the UN Convention, on the other hand, allows an EEZ. Speaking of the 9-
dash line,
 According to articles 13 and 121 of the Convention, “features that are above
water at high tide generate an entitlement to at least 12 nautical mile territorial sea,
features that are submerged at high tide, on the other hand, generate no entitlement to
maritime zones. (The Scarborough Shoal, Johnson Reef, Fiery Cross Reef, Gaven Reef
(north), and McKennan Reef are high-tide features; Subi Reef, Hughes Reef, Mischief
Reef, and Second Thomas Shoal were submerged at high-tide.)

According the China’s claim, the Scarborough Shoal, an ‘island’, is able to

generate an EEZ, which could overlap with the EEZ of the Philippines, but, in reality, it
doesn’t. In defense, the Scarborough Shoal is not an island and is described to be a
rocky sandbar; therefore, the said rocky sandbar is not able to have an entitlement and
an exclusive economic zone, and the said overlapping of economic zones would not be
of mind anymore.

Laws are believed to have prevented utter chaos. Each and every one are given
rights and duties that are to be followed. China has breached the laws of the Convention
by interfering with the Philippines’ exercise of its sovereign rights and jurisdiction. It has
been seen that China prevented Filipino fishermen from fishing in the West Philippine
Sea. UNCLOS, on the other hand, gave the Filipinos exclusive rights to fish within the
Philippines’ EEZ in the disputed waters.

Keep in mind that the area of exploitation at the Scarborough Shoal was within
the said exclusive economic zone; the Philippines never provoked or violated the laws
whatsoever when the fishermen were at the area. China, on the contrary, broke the
treaty that they have signed since they prohibited a right of a country to visit and
exploit the area within the exclusive economic zone (refer to Article 121, paragraph 3,
of the UNCLOS “rocks do not generate an entitlement of more than 12 miles while
islands entitle a state to a 200-nautical-mile exclusive economic zone, within which it
can exploit resources like fish, oil, and gas.)

Apart from the prohibition and abusing of rights, China has also violated the
Convention by the construction of artificial islands – China’s reclamation activites.
According to the reports, due to the construction in the Spratlys’ area, 311 hectares of
coral reefs were buried (the damage done is estimated to be around 7 times the size of
the Vatican and an estimate of 4.8 billion PHP lost in economic benefits), permanently
damaging the environment. It has been stated in the law, specifically of Article 192 and
194 of the Convention, that a state must preserve, protect, and respect the ecosystem,
in which, based on such facts, China has violated. In addition to their violations, it has
also been reported that aside from China’s destructive and hazardous fishing practices,
they have also been harvesting endangered species.

Spratlys In the Spratly Islands, China, Vietnam, the Philippines, Malaysia,

and Brunei have territorial disputes, with China and Vietnam claiming the
entire Spratlys, while the Philippines and Malaysia claiming only certain
islands and rocks above water at high tide. Louisa Reef, within Brunei’s EEZ
and about 1 meter above water at high tide, is claimed by Brunei, and by China
as Nantong Reef.

Scarborough Shoal China and the Philippines have a territorial dispute over
Scarborough Shoal. The maritime entitlements of rocks above water at high
tide, like Scarborough Shoal, can be independently determined without deciding
which state exercises sovereignty over the rocks. One does not need to know
which state has sovereignty over such rocks to conclude with certainty that
such rocks are not capable of sustaining human habitation or economic life of
their own. Not a single blade of grass grows on the rocks of Scarborough
Shoal, and not a single drop of fresh water can be squeezed from those rocks.
Scarborough Shoal, whose biggest rock is 1.2 meters above water at high tide,
can generate only a 12 NM territorial sea, regardless of which state has
sovereignty over the shoal

Maritime Disputes

A maritime dispute can refer to, inter alia, (1) overlapping maritime
entitlements (territorial sea in Article 15, EEZ in Article 74, and ECS in
Article 83, UNCLOS), or (2) disputes on the interpretation or application of
UNCLOS. UNCLOS governs maritime disputes in the South China Sea. For UNCLOS
states parties, a maritime dispute can be settled by agreement of the parties
through negotiations, and failing that, through compulsory arbitration
[Article 298, (a)(i), UNCLOS]. All disputant states in the South China Sea
dispute have ratified UNCLOS. Under Article 298 (a)(i) of UNCLOS, states
parties can opt out of compulsory arbitration on disputes involving, inter
alia (1) sea boundary delimitation of overlapping maritime entitlements, and
(2) disputes involving “historic bays or titles.” These are the grounds in
Article 298 that China invoked in questioning the jurisdiction of the Arbitral
Tribunal. China opted out of compulsory arbitration in 2006. The term
“historic bays” refers to waters in deeply indented bays or gulfs that have
acquired the status of internal waters. The term “historic titles” can only
be invoked in the delimitation of the territorial sea (Article 15, UNCLOS). A
“historic title” means ownership or sovereignty. In short, the opt-out
clause applies only to disputes involving overlapping territorial seas,
overlapping EEZs or overlapping ECSs, and disputes involving the territorial
sea or deeply indented bays or gulfs forming part of internal waters. A state
party that opts out of compulsory arbitration can still be subject to
compulsory conciliation. A state party cannot opt out of compulsory
conciliation [Article 298, (a)(i), UNCLOS]. EEZs of ASEAN States China, on the
one side, and on the other side, Vietnam, the Philippines, Malaysia, Brunei,
and Indonesia have a maritime dispute with China whose nine-dashed line
encroaches on the EEZs of these five ASEAN states. West Philippine Sea The
dispute between the Philippines and China involves the EEZ and ECS70 of the
Philippines in the West Philippine Sea, which forms part of the South China
Sea. Under Administrative Order No. 29 (2012), the West Philippines Sea refers
to the waters covered by the maritime entitlements (territorial sea and EEZ)
of the Philippines in the South China Sea. The West Philippine Sea also
includes the Philippine ECS. Under Article 77 (3) of UNCLOS, the right of the
Philippines to its continental shelf, including its 150 NM extended
continental shelf, does not depend on any occupation or proclamation. Such
continental shelf inheres ipso facto and ab initio to the Philippines by
virtue of its sovereignty over its land territory

The Philippine arbitration case against China does not involve a territorial
dispute but exclusively maritime disputes involving the interpretation or
application of UNCLOS, particularly: Whether China’s nine-dashed line claim,
supposedly based on historic rights, can generate maritime entitlements that
can encroach on or overlap with the 200 NM Philippine EEZ; Whether certain
geologic features, within Philippine EEZ, are (1) mere rocks above water at
high tide that generate no EEZ but only a territorial sea; or (2) LTEs that
are not entitled to a territorial sea and thus form part of the continental
shelf of Philippine EEZ; Whether certain geologic features, outside Philippine
EEZ, are (1) mere rocks above water at high tide that generate no EEZ but only
a territorial sea; or (2) LTEs that generate no territorial sea and thus form
part of the continental shelf; Whether China violated the sovereign rights and
jurisdiction of the Philippines within Philippine EEZ. The Philippines did not
ask the Arbitral Tribunal to rule which state is sovereign over certain
islands or rocks above water at high tide. Rather, the Philippines asked the
Arbitral Tribunal to rule on the extent of the maritime entitlements (0, 12 or
200 NM) of certain geologic features, regardless of which state, if any,
exercises sovereignty over them. All these are maritime disputes governed by
UNCLOS.

China claims that the fundamental principle in the Law of the Sea — that
“land dominates the sea” — requires that sovereignty over the land must
first be decided before maritime entitlements can be determined. However, the
nine-dashed line is not measured from land so this fundamental principle,
which requires maritime entitlements to be measured from land, cannot apply.

What applies is the reverse — the absence of land dominates no sea. Since the
ninedashed line is not measured from land, and even completely ignores land as
basepoints of the line, the line cannot claim any sea. Sovereignty does not
affect the physical attributes of an island, a high-tide elevation or an LTE.
An LTE beyond the territorial sea, like Mischief Reef, remains an LTE
incapable of sovereign ownership by any state, whether it is claimed by China,
the Philippines or another state. An UNCLOS tribunal can decide whether a
geologic feature is a rock above water at high tide or submerged at high tide.
This issue is not a dispute on sovereignty, but a dispute on maritime
entitlement. The resolution of this dispute will not resolve the sovereignty
issue but only the maritime entitlement of the geologic feature. In fact, if
the geologic feature is declared an LTE beyond the territorial sea, the LTE is
not even capable of sovereign appropriation or sovereign ownership by any
state. The dispute — arising from the ninedashed line as derived from
historic rights — is a dispute involving the interpretation of UNCLOS, that
is, whether under UNCLOS, historic rights can serve as basis to claim maritime
entitlements beyond the territorial sea. This is not a dispute involving sea
boundary delimitation of overlapping territorial seas, overlapping EEZs or
overlapping ECSs between coastal states.

West Philippine Sea The dispute between the Philippines and China involves the
EEZ and ECS70 of the Philippines in the West Philippine Sea, which forms part
of the South China Sea. Under Administrative Order No. 29 (2012), the West
Philippines Sea refers to the waters covered by the maritime entitlements
(territorial sea and EEZ) of the Philippines in the South China Sea. The West
Philippine Sea also includes the Philippine ECS. Under Article 77 (3) of
UNCLOS, the right of the Philippines to its continental shelf, including its
150 NM extended continental shelf, does not depend on any occupation or
proclamation. Such continental shelf inheres ipso facto and ab initio to the
Philippines by virtue of its sovereignty over its land territory

THE PHILIPPINES’ POSITION

The Philippines submits that the Tribunal has jurisdiction to consider its Submissions
No. 1 and 2. On the merits, the Philippines argues both (a) that any rights that China may have
had in the maritime areas of the South China Sea beyond those provided for in the Convention
were extinguished by China’s accession to the Convention and (b) that China never had historic rights in
the waters of the South China Sea.

1. Jurisdiction
189. With respect to jurisdiction, the Philippines argues that China’s statements since May 2009
make a consistent distinction between claims to “sovereignty” and claims to “sovereign rights
and jurisdiction,” and a further distinction between the “islands in the South China Sea and the
adjacent waters” and the “relevant waters”. According to the Philippines:
the most logical way to construe China’s language is as an assertion of sovereignty over the
islands of the South China Sea and their “adjacent waters”, or territorial seas; and a claim of
sovereign rights and jurisdiction—short of sovereignty—in the waters that lie between the
territorial seas claimed by China and the nine-dash line.160
190. In the Philippines’ view, the nature of China’s claim as one of sovereign rights and jurisdiction
is confirmed by China’s conduct in (a) seeking to ban fishing by other States within the
‘nine-dash line’; (b) interfering with the Philippines’ petroleum exploration activities; and (c)
offering concessions to oil blocks in areas within the ‘nine-dash line’ but beyond the possible
limits of China’s entitlements under the Convention.
At the same time, the Philippines
considers that China’s conduct makes clear that its claim is not to sovereignty over the entire
area within the ‘nine-dash line’, insofar as China has repeatedly asserted that it respects freedom
of navigation and overflight in the South China Sea.162 The Philippines also notes that this
interpretation of China’s position has been adopted by numerous Chinese scholars, including
those with significant links to the government.163
191. According to the Philippines, the exception to jurisdiction in Article 298 of the Convention is
limited to disputes involving “historic bays or titles.” Moreover, the Philippines argues, “the
concept of ‘historic title’ as used in Article 298 has a specific and limited meaning: it pertains
only to near-shore areas of sea that are susceptible to a claim of sovereignty as such.” 164
Because the Philippines understands China’s claims to fall short of sovereignty over the
maritime areas of the South China Sea (beyond the “islands” and “adjacent waters”), the
Philippines considers that China’s claim cannot be one of historic title. In this respect, the
Philippines argues that there is a consistent distinction—including in the Chinese terminology—
between China’s use of the term “historical rights” in China’s Exclusive Economic Zone and Continental
Shelf Act 165 and the term ‘historic title’ in Article 298 and elsewhere in the
Convention. As such, the Philippines argues, “China’s claim of ‘historic rights’ within the area
encompassed by the nine-dash line is not covered by Article 298(1)(a)(i).”166 Even if China’s
claim were to a historic title, however, the Philippines submits that Article 298 would
nevertheless be inapplicable because the article applies only to disputes over the delimitation of
historic bays and titles. According to the Philippines, “when Article 298(1)(a)(i) refers to ‘those
involving historic bays or titles’ the ‘those’ being referred to are not disputes generally but
rather disputes concerning delimitation.”16
2. China’s Claim to Historic Rights
192. With respect to the merits, the Philippines’ argument is two-fold. First, the Philippines submits
that international law did not historically permit the type of expansive claim advanced by
China’s ‘nine-dash line’ and that, even if China did possess historic rights in the South China
Sea, any such rights were extinguished by the adoption of the Convention. Second, the
Philippines argues that, on the basis of the historical record of China’s activities in the South
China Sea, China cannot meet the criteria for having established historic rights within the ‘ninedash
line’.
193. According to the Philippines, international law prior to the adoption of the Convention did not
accept “assertions of historic rights over such a vast area” as China now claims. 168 Prior to the
Convention, the Philippines argues, “[t]he sea was subject only to two principles: the principle
of the freedom of the seas, which prohibits appropriation by any state; and the principle of
control over a limited area by the immediately adjacent coastal state, which prohibits
appropriation by any other state.”169 In the Philippines’ view, “China’s claim . . . is inconsistent
with both principles.”170
165

194. With the adoption of the Convention, the Philippines submits, the States Parties considered
“with careful specificity the nature of prior uses [of the sea] that are protected, the nature of the
protections, and the areas in which such protections apply.”171 According to the Philippines,
where the Convention makes no express exception for prior uses or rights “those historic rights
would not have survived as derogations from the sovereignty, sovereign rights and high seas
freedoms of other states.”172 Notably, while some protections of prior uses were accepted, the
Philippines argues that “distant water fishing states failed to obtain recognition in the exclusive
economic zone of historic fishing rights derived from prior high seas fishing.” 173 In the course
of these debates, the Philippines submits:
China was a vocal supporter of the demands of developing coastal states for exclusive
jurisdiction over the natural resources in the EEZs and continental shelves off their
respective coasts, and China was a consistent critic of attempts to limit the content of that
jurisdiction. China identified itself as one of those developing coastal states. It made no
attempt whatsoever to secure an exception protecting historic claims of maritime rights of
the kind that are now at issue.174
Accordingly, the Philippines concludes, “[t]he Convention leaves no room for assertions of
rights to control activities beyond [the limits fixed in the Convention] in derogation of the
sovereign rights of other coastal states or the rights and freedoms of all states.”175
195. The Philippines also challenges the existence of Chinese historic rights in the maritime areas of
the South China Sea. According to the Philippines, China “first claimed the existence of such
rights on 7th May 2009.”176 The Philippines submits that Chinese historic maps dating back to
1136, including those purporting to depict the entirety of the Empire of China, consistently
show China’s territory extending no further south than Hainan. 177 The Philippines also notes
that, for periods of the 14th century and for much of the 15th and 16th centuries, the Imperial
Chinese Government actively prohibited maritime trade by Chinese subjects. 178 Indeed, the
Philippines notes: During the mid-15th century, for instance, the Ming authorities suppressed maritime
activities, and in 1500 made it a capital offence to build two-masted ships. In 1525, all such remaining ships
were ordered destroyed. In 1551, China defined venturing out to sea in a
multi-masted ship to be an act of treason.179
196. This ambivalent attitude to seafaring explains, for the Philippines, China’s muted reaction to the
activities of European States in the South China Sea and its lack of protest to European
navigation and the establishment of colonies in Southeast Asia, beginning in the 16 th century.
197. Reviewing the published archival records of the Taiwan Authority of China, 180 which the
Philippines considers to comprise documents selected to support China’s claims, the Philippines
emphasises the absence of “any documents evidencing any official Chinese activities in regard
to any South China Sea feature prior to the beginning of the 20th century.”181 The Philippines
also emphasises a Note Verbale from the Legation of the Chinese Republic in France to the
French Ministry of Foreign Affairs in 1932, stating that the Paracel Islands “form the
southernmost part of Chinese territory.”182 According to the Philippines, when China “sought to
assert its claim to the South China Sea islands,”183 following the defeat of Japanese forces in the
Second World War, the plans included an effort to develop Chinese names for the features, the
majority of which were then identified only by Chinese transliterations of their English
names.184 According to the Philippines “Lord Auckland Shoal was thus ‘Ao ke lan sha’, and
Mischief Reef ‘Mi-qi fu’. Gaven Reef was ‘Ge wen’, and Amy Douglas Reef ‘A mi de ge la’.” Based on
this record, the Philippines questions how China could have historic rights in an area
“over which it had so little involvement or connection that most of the features had no Chinese
names.”186